Petition — Foundation for the Handicapped v. Department of Social & Health Services

—

Offiee - Supreme Court US

82-742 FILED

OCT 27 1992

ALEXANDER

NO. “" lL. STEVAS,

CLERK

_——

IN THE

Supreme Court of the United States

OCTOBER TERM 1982

FOUNDATION FOR THE HANDICAPPED

Petitioner,

Vv.

DEPARTMENT OF SOCIAL AND HEALTH SERVICES

OF THE STATE OF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

SWEET, DUSSAULT, NEFF &

GIBBS, P.S.

By: WILLIAM L. E. DUSSAULT

Counsel for Petitioner

Oftice and P.O. Address:

219 East Galer

Seattle, Washington 98102

(206) 324-4300

i

QUESTIONS PRESENTED

1. Did the Supreme Court of Washing-

ton commit error by upholding the notice

and appeal provisions of RCW 72.33.670

(1981) as applied to mentally and physi-

cally handicapped residents of state

institutions wno, while not subject to a

judicial declaration of incompetency, by

statutory requirement and known disability,

are incapable of understanding or respond-

ing to notice in a manner which satisfies

the “notice and opportunity to be heard"

requirements of the due process clause of

the fourteenth amendment to the United

States Constitution?

2. Whether the Supreme Court of

Washington committed error in upholding the

disparate treatment of identically situated

residents of state schools under RCW

72.33.670 (1981) by collecting funds from

some residents subject to a guardian of the

ii

estate, but not from other similarly

situated residents, based solely on a

legislative drafting error and not upon a

rational relationship to a legitimate

governmental objective, as required by the

equal protection clause of the fourteenth

amendment to the United States Constitu-

tion?

3. By its ruling in Duffy v. Social

& Health Services, 90 Wn.2d 673, 583 P.2d

470 (1976), that RCW 72.33.670 (1981)

was unconstitutional as applied to one

segment of equally situated individuals and

the ruling in the present case that the

statute could be applied to another segment

of equally situated individuals without

constitutional violation, did the Washing-

ton Supreme Court violate the equal protec-

tion clause of the fourteenth amendment by

allowing discretionary differential appli-

cation of the statute without any rational

basis for doing so?

iii

4. If RCW 72.33.670 (1981) is

ruled partially inapplicable or unconstitu-

tional under either the due process clause

Or equal protection clause of the four-

teenth amendment, dwes the statute thus

violate RCW 49.60 (1981) by permitting

collection of funds based solely upon

perceived mental capacity?

iv

LIST OF PARTIES

FOUNDATION FOR THE HANDICAPPED, |

Petitioner,

Ve

DEPARTMENT OF SOCIAL AND HEALTH SERVICES

OF WASHINGTON STATE,

Respondent.

lime Foundation represents the following

individual petitioners: GERALD DUNN;

STEPHEN MADDOX, by and through his guardian

ad litem, THE FOUNDATION FOR THE HANDI-

CAPPED; PEGGY JEAN WIGINTON, by and through

her guardian ad litem, THE FOUNDATION FOR

THE HANDICAPPED; DONALD WOODWARD, by and

through his guardian ad litem, THE FOUNDA-

TION FOR THE HANDICAPPED; THEODORE BROWN,

by and through his guardian ad litem, THE

FOUNDATION FOR THE HANDICAPPED; LEONA

WAKEFIELD, by and through her guardian ad

litem, THE FOUNDATION FOR THE HANDICAPPED;

GARY JENKINS, by and through his guardian,

LINDA DUFFY; and JACK FURLAN, by and

through his guardian, ELSIE GRANATA.

In an order on June 12, 1980, the trial

court determined that the persons repre-

sented by the Founcation for the Handicap-

ped, for which it served as guardian or

Vv

limited guardian of the person and/or

estate, or representative payee for the

purpose of receipt of state or federal

benefits and the other named plaintiffs

“will fairly and adequately represent the

legal rights and best interests of all the

present and potential residents of the

state residential schools and institutions

concerned in this litigation." (R-125.)

The trial court certified this case as a

class action “insofar as those individuals

are concerned .. ." (R=-125).

vi

TABLE OF CONTENTS

Opinions Below ..+++++«¢seee8s 1

Jurisdiction . . . . . . >. >. . . . >.

Constitutional Provisions Involved. .

Statutory Provisions "nvolved....

I.

II.

Statement of the Case ..+.«.-s.

How Federal Questions Were

Raised . >. . — >. >. >. > . . . . ay

Re Tedekh Gomme « © ec eo eo ee o

2. The Supreme Court of

Washington ...++ e+ «#-s 10

Reasons for Granting the Writ... . 13

I.

II.

The Decision of the Supreme

Court of Washington Failed to

Recognize That By Statutory

Definition, the Mentally and

Physically Handicapped Resi-

dents of State Institutions Are

Individually Incapable of Re-

sponding to Notice in a Manner

Which Satisfies the Procedural

Due Process Requirements of the

Constitution ...+++«+«+«e-s 13

The Decision Below Incorrectly

Upholds a Distinction Between

Identically Situated Individuals In

the Face of Equal Protection Argu-

ments, With the Distinction Caused

By Legislative Drafting Error With-

out Any Rational Basis ..... 22

vii

Page

III. The Supreme Court of Washington

IV.

Validated an Impermissibly Vague

Statute Which Provides no Authority

or Guidance for a Method of Service

or Opportunity for Hearing for Resi-

dents Not Named in the Statutes, Thus

Allowing Collection From Such Resi-

dents Based Upon the Discretionary

Whim of State Officials. .... 28

If RCW 72.33.670 (1981) Is Invalid

On Either Due Process or Equal

Protection Grounds, the Statute

Violates RCW 49.60.030 (1981),

the Washington Anti-Discrimina-

tion Law.-«-sceeee eevee @ 32

Conclusion . . . . . . . . . . . . . 35

Appendices

Appendix A . a. te Se ¢ . . . * * . . A-1l

Appendix B ee we ee Om Ol Oe Oe Oe A-21

Appendix Cc ee ame Re De Ss oF ee Pe Ee Oo Be A-59

TABLES OF AUTHORITY

Table of Cases

Buckley v. Valeo, 424 U.S. 1 (1976) 31

covey v. Town of Somers, 351 U.S.

) . . . . . . . . . 16, 17,18,21

Duffy v. Social & Health Services,

n. ’ .

(1978). .« « « « « « +6,10,21,24,25,passim

viii

Giaccio v. Penn, 382 U.S.

so osat v. Kelley, 397 U.S.

399 (1966).

>

Ww

~

254

al . . . . . 22

Lovell v. Griffin, 303 U.S. 444

06) ) ree

. . . . . . 30

Mullane v. Central Hanover Bank &

Trust Co., U.s.

. . . . 15

. . . . . . 23

New Orleans v. Dukes, 427 U.S. 297

Staub v. Baxley, 355 U.S.

313 (1958). . 30

Constitutional Provisions

U.S. Const. amend. I...

U.S. Const. amend. XIV.

U.S. Const. amend. XIV, §

Statutes

RCW 11.88 (1981) ....

RCW 49.60 (1981) ....

RCW 49.60.030 (1981). . .

RCW 49.60.030(1) (1981)

RCW 49.60.030(2) (1981) .

RCW 72.33.020 (1981) ..

9,

te ee Re ser ig 29

a ee eS 8, 12

ae: re >

10,12,32,passim

» « « 33,34,35

, 6.6 oe @ oe

+ « « 3-4,16,18

ix

Page

RCW 72.33.650 (1981) ... + + « « « 23-24

RCW 72.33.670 (1981). . . .3,5,6,7,8,passim

28 U.S.C. § 1257(3) ~- - «© © we we we wo 2

Rules and Regulations

Wash. Admin. Code 275-20-080

(1980) ’._2.#2°¢ = & es eS eS 6S eS Ue me ~-7,9,27

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBEX TERM 1982

FOUNDATION FOR THE HANDICAPPED

Petitioner,

Vv.

DEPARTMENT OF SOCIAL AND HEALTH SERVICES

OF THE STATE UF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

The petitioner, Foundation for the

Handicapped, respectfully prays that a writ

of certiorari issue to review the judgment

and opinion of the Supreme Court of Wash-

ington entered in this proceeding on July

29, 1982.

OPINIONS BELOW

The opinion of the Supreme Court of

Washington is reported in 97 Wn.2d 691, 648

P.2d 884 (1982), and appears in Appendix A.

2

The opinion of the Superior Court is

unreported and appears in Appendix B.

JURISDICTION

The judgment ot the Supreme Court of

Washington affirming respondent's summary

judgment was filed on July 29, 1982. This

petition for certiorari was filed within 90

days of that date. This Court's jurisdic-

tion is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment

XIV, Section l:

All persons born or naturalized in

the United States, and subject to

the jurisdiction thereof, are

citizens of the United States and of

the state wherein they reside. No

state shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of the

United States; nor shall any state

deprive any person of life, liberty

Or property, without due process of

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the laws.

3

STATUTORY PROVISIONS INVOLVED

RCW 72.33.670 (1981). The statute

appears in Appendix C.

STATEMENT OF THE CASE

I. Facts

The individual named petitioners are

all class members who either currently

reside in one of the five state residen-

tial institutions for the retarded

("schools") in the state of Washington or

have resided in one of such “schools” for

some period of time since July 1, 1967.

To be admitted and remain as a resi-

dent, an individual must meet either the

mental or physical handicap definitions

contained in RCW 72.33.020 (1981):

Mental handicap is a state of

limited development in consequence

of which the individual affected is

mentally incapable of assuming those

responsibilities expected of a

socially adequate person such as

self-direction, self-support and

social participation.

4

Physical handicap is a state of

physical impairment in consequence

of which the individual affected is

physically incapable of assuming

those responsibilities expected of a

socially adequate person, such as

self-direction, self-support and

social participation.

While all residents must meet one of

the above-cited definitions in order to

gain admittance to one of the state resi-

dential schools, the residents have differ-

ing degrees of legal and actual capacity.

Washington State has four statutory types

and levels of incompetency, disability, and

guardianship. See RCW 11.88 (1981). Some

members of the petitioner class are subject

to a judicial determination of incompetency

or disability. Such a determination may

result in the appointment of a full or

total guardianship of person and/or

estate, or the appointment of a limited

guardian of persons and/or estate.

Other class members have previously

been determined incompetent or disabled by

5

a court, but have no current guardian as

their legal representative. Some have

actual physical or mental disabilities,

known to the state to be sufficient to

justify their residence in a state school

with their legal competency or disability

having not been determined by any court.

RCW 72.33.670 (1981) provides that

residents of all state “schools” are

required to pay the State of Washington

various charges for the cost of care

received as residents. The statute estab-

lishes the sole and exclusive mechanism for

collection. In brief, RCW 72.33.670

(1981) calls for collection from all

residents capable of paying all or a

portion of monthly charges. A Notice and

Finding of Financial Responsibility is

served on the guardian of the resident's

estate, or, if none has been appointed,

upon the spouse or parents or anyone else

acting in a representative capacity and

6

having possession of property belonging to

the resident. No provision is made for

service on the individual resident, nor for

service on any type of court-appointed

representative other than a guardian of the

estate.

An appeal from the determination of

financial responsibility may be made by the

guardian of the resident's estate. If no

guardian has been appointed, the appeal may

be made by certain individuals listed in

the statute (see App. C). If no appeal is

taken, the Notice and Finding of Financial

Responsibility becomes final. The statute

makes no provision for appeal by the resi-

dent nor for appeal by any court-appointed

personal representative, except for.the

guardian of the estate.

In Duffy v. Social & Heaith Services,

90 Wn.2d 673, 583 P.2d 470 (1978), the

Washington State Supreme Court found RCW

72.33.670 (1981) unconstitutional because

-

it did not provide service to adult resi-

dents not subject to legal declaration of

incompetency. As a result of the Supreme

Court decision, the Department of Social

and Health Services (DSHS) amended its

rules and adopted Wash. Admin. Code

275-20-080 (1980).

The regulation provided for personal

service upon adult residents who had not

been subject to a legal declaration of

incompetency. No mechanism for determining

actual competency for persons without

guardians of the estate has ever been

established by the state. RCW 72.33.670

(1981) remains unchanged.

The petitioners seek a refunding of

$683,000,000.00 collected from residents of

state schools since 1967 under the statute.

8

II. How Federal Questions Were Raised

1. Trial court

The petitioners filed a complaint in

the Superior Court of Washington for

Thurston County on March 5, 1979, alleging

that RCW 72.33.670 (1981) was subject to

constitutional deficiencies (R. at 4).

The complaint alleged that the statute

violated due process of law as guaranteed

by the fourteenth amendment of the United

States Constitution, by failure to provide

service on adult residents not subject to a

legal declaration of incompetency (R. at

15).

The petitioners also alleged in the

complaint that the equal protection clause

of the fourteenth amendment was violated,

as similarly situated residents were clas-

sified differently based upon a legislative

drafting error or omission and not upon a

rational relationship to a legitimate state

interest (R. at 16). The complaint also

9

stated that RCW 49.60.030 (1981) was

violated by permitting classification upon

the basis of mental competency (R. at 13,

14).

Mutual motions for summary judgment

were filed. The trial judge upheld the

respondent's summary judgment motion in a

memorandum opinion filed June 22, 1981 (see

App. B). The trial judge held that the

adoption of Wash. Admin. Code 275-20-080

(1980) had cured the due process defi-

ciencies in RCW 72.33.670 (1981), al-

though he also held that the statute was

unconstitutional as applied to adult

residents not subject to a legal declara-

tion of incompetency served prior to 1976

(R. at 306, 307, App. B, pp. 39, 40). He

ruled that the equal protection clause was

not violated, as the classification in-

volved was ability to pay, not legal

competency (R. at 311, 312, App. B, p.

A-52).

10

The trial court did not address the

question of violation of RCW 49.60.030

(1981). Judge Baker found equitable

grounds to deny recovery to residents who

were served improperly, as ruled in Duffy

(R. at 15, App. B, pp. 55-56).

2. The Supreme Court of Washington

The petitioners filed notice of appeal

to the Supreme Court of Washington on March

31, 1981 (R. at 318). The appeal alleged

error by the trial court in failing to

determine that RCW 72.33.670 (1981)

violated constitutional requirements under

the due process clause of the fourteenth

amendment (R. at 318). The petitioners

also alleged that the trial court erred in

ruling the statute constitutional as

applied to one group of individuals but not

another, based solely upon legislative

drafting error (R. at 319). Finally, the

petitioners alleged error by the trial

ll

court in permitting differential applica-

tion of the statute based upon differences

involving mental capacity in violation of

RCW 49.60 (1981).

The Suprene Court of Washington

accepted the appeal. Briefs were submitted

and oral argument was presented. The

Supreme Court of Washington affirmed the

summary judgment for the respondents. In a

written opinion, the court ruled that the

service provisions of RCW 72.33.670 (1981)

complied with procedural due process under

the Constitution:

DSHS personally served those

residents who are not subject to a

legal disability. In addition, it

serves those residents’ spouses,

parents or other persons acting in a

representative capacity and having

property in their possession belong-

ing to the residents, and the

superintendent of the schools. We

conclude that such notice meets the

requirements of due process as it is

reasonably calculated to apprise the

resident of the proceeding affecting

him.

(App. A, p- A-13).

12

The Supreme Court of Washington also

held that RCW 72.33.670 (1981) did not

violate equal protection of the laws under

the fourteenth amendment. The classifica-

tion in the statute was said to be between

adult residents who were legally competent

and more severely handicapped or juvenile

residents subject to legal incompetency.

The court held this classification to be

constitutionally permissible:

Thus, the distinction is premised

on the legal competency of the

individual and is rationally related

to the purpose of the statute, which

is to afford each resident with

meaningful notice. Such a distinc-

tion does not offend the principles

of equal protection.

(App. A, Pp- A-10).

The court rejected the petitioner's

contention that the statute violated RCW

49.60.030 (1981). In the court's view,.

the classification was based not upon

mental or physical handicap, but upon:

i3

{[TyJhe presence or absence of legal

incompetency. The incompetency can

be based on age, developmental dis-

ability, or severe mental defi-

ciency. RCW 11.88.010(1). There

has been no discrimination solely

“because of" a mental or physical

handicap.

(App. A, pp. 10-11).

Finally, the court affirmed the trial

court's ruling that funds collected under

improper service between 1967-1976 could be

retained by the state, due to principles of

unjust enrichment (App. A, p. 17).

REASONS FOR GRANTING THE WRIT

I. The Decision of the Supreme Court of

Washington Failed to Recognize That B

Statuto Definition ee Mentall —

Physically Handicapped Residents o

State Institutions Are Individually

Incapable of Responding to Notice ina

Wanner Which Betiefice the Procedural

Due Process Requirements of the

Constitution

The decision of the Supreme Court of

Washington blatantly violates the two most

basic principles of procedural due process

as continuously enunciated by the Supreme

Court of the United States. By validating

14

the procedure established in RCW 72.33.670

(1981), the court has approved a statutory

and regulatory system which provides

meaningless paper service and no real

opportunity for hearing for a signifi-

cant number of named petitioners whose

property has been taken by the state.

The Washington State Supreme Court

ruling allows for the service of a printed

form notice to a class of persons who the

state knows, by statutory definition, are

incapable of understanding such notice.

While all petitioners may not be fully

legally incompetent, no method is provided

for determining actual or legal competency.

Additional service is provided to other -

persons, but no legal relationship or

responsibility exists between such other

persons and the person whose property is

taken.

The decision makes a complete mockery

of the concept of meaningful notice and

15

opportunity for hearing. The Supreme Court

of the United States has never deviated

from the position that an individual must

be provided constitutionally valid proce-

dural due process of law before property

can be taken from him. Such due process

must include “notice reasonably calculated

under all the circumstances to apprise

intended parties of the pendency of the

action and afford them an opportunity to

present their objections." Mullane v.

Central Hanover Bank & Trust Co., 339 U.S.

306, 314 (1950).

The Supreme Court of the United States

has stressed the importance of fitting

notice to the “practicalities and peculi-

arities of the case... .," (id., at 314).

It is against the Mullane requirements that

the statutory notice provisions and the

Supreme Court of Washington's decision must

be judged.

16

The “practicalities and peculiarities”

of this case are the physical and mental

handicaps of the residents. The statutory

definitions of these terms contained in

RCW 72.33.020 (1981) focus on the inability

of the residents to assume “those responsi-

bilities expected of the socially adequate

person, such as self-direction, self-sup-

port and social participation .. ." This

language is the same in the statute for

both physically and mentally handicapped

residents. For notice to be meaningful for

such persons, their actual abilities must

be evaluated and considered.

The Supreme Court of the United States

in Covey v. Town of Somers, 351 U.S. 141

(1956), described the procedural due pro-

cess necessary in dealing with individuals

having questionable mental capacity such as

the petitioners. In Covey, the Town of

Somers attempted to foreclose a tax lien on

an individual known by the town to be an

17

incompetent, but not subject to a legal

declaration of incompetency. The town gave

notice by publication, posting and mail.

There was no question that the individual

had actually received notice.

The Supreme Court reversed lower court

decisions upholding the notice and subse-

quent tax lien foreclosures as p~oper under

the due process clause. The Court re-

flected that the town had known for “upward

of 15 years" that the petitioner was

actually incompetent and a person “without

mental capacity to handle her affairs or to

understand the meaning of any notice served

upon her." Covey, at 146. The Court held:

Notice to a person known to be

incompetent and without the protec-

tion of a guardian does not measure

up to this requirement .. . we must

hold that compliance with the

statute would not afford notice to

the incompetent and that a taking

under such circumstances would be

without due process of law.

(Covey, at 146-147).

18

Covey is the standard for judging

notice to the petitioners. Receipt

of a printed form entitled “Notice” is not

the same as receiving meaningful notice

satisfactory of due process requirements.

The Supreme Court of Washington's decision

focuses on Covey-like residents; actual but

undeclared incompetents. Yet, the Supreme

Court of Washington specifically ruled

Covey non-germane, although it is factually

indistinguishable. The court reasoned that

since some residents were only physically

but not mentally handicapped, “the state is

not put on notice that every resident is

unable to comprehend a notice .. .," (App.

A, pp. 12-13).

There are fundamental flaws in this

reasoning. First, attention must again be

called to RCW 72.33.020 (1981), which

contains the definition of capacity for

residents. Certainly, one of the responsi-

bilities of a socially adequate person,

19

whether mentally or physically handicapped,

is the ability to respond to notice. But,

by the statute's definition, all residents

are deemed socially inadequate. The state

is on notice by its own statute that

residents cannot respond.

Secondly, the petitioners have never

contended that all residents are totally

incompetent for the purposes of responding

to notice. But the state and the Supreme

Court of Washington cannot argue that this

fact excuses the statutory notice provision

at issue. The statute has no procedure for

establishing the competency or degree of

incompetency of residents to determine

those able to respond to notice. How can

the state contend residents are capable of

understanding and responding if, knowing of

the statutory definition, the state has no

procedure for determining actual compe-

tency?

20

The fact that some residents might be

able to respond to notice without aid is of

little soiace to residents unable to do so.

Certainly, for residents who are actual but

undeclared incompetents, the present

procedure violates due process. While the

state cannot presume the incompetency of

residents, in light of its own statutory

definition of the population involved, it

certainly cannot presume competency, as the

Supreme Court of Washington allows.

The Supreme Court of Washington also

erroneously held that service on residents’

spouses, parents or others acting in a

quasi-fiduciary capacity, as outlined in

RCW 72.33.670 (1981), coupled with service

on the residents, comported with due

process (App. A, p. A-13).

Presumably, the court felt that such

service was necessary because service on

the residents alone would not comply with

due process. Such other individuals have

21

no more legal right to act on behalf of

adult residents without the establishment

of a legal guardianship than a complete

stranger. As the court expressly held

in Duffy, supra, the property is under

the legal control of the resident only.

In Covey, the Supreme Court ordered a

two-step relief, which is also called for

in the present case. First, the property

that had been taken was to be returned, as

it had been taken without due process.

Second, the court implied that a guardian

must be appointed upon whom proper service

could be made. Covey dictates that the

money collected pursuant to constitu-

tionally deficient service from residents

who are known to be incompetent, even

though not subject to a legal declaration

of disability, must be returned.

Any further collection should occur

only after guardians ad litem have been

appointed for residents not subject to a

22

legal declaration of incompetency. If

residents are determined competent to

respond to notice, they can be served. If

a resident is determined incompetent to

respond to notice, a guardian must be

appointed to receive notice on his or her

behalf.

The above described procedure will not

be inexpensive. But financial cost is an

irrelevant consideration when dealing with

the remedy for a denial of due process of

law, as has occurred here. Goldberg v.

Kelley, 397 U.S. 254 (1970). The state has

denied due process and should not be heard

to plead that it cannot pay for its error.

II. The Decision Below Incorrectly Upholds

a Distinction Between Identicall

Jituated Individuals in the Face o

Equal Protection Arguments, With the

Distinction Caused By Legislative

Drafting Error Without Any Rational

Basis

The Supreme Court of Washington

erroneously concluded that allowing col-

lection under RCW 72.33.670 (1981) from

23

some identically situated residents, but

not others, dia not violate equal protec-

tion of the laws as guaranteed by the

fourteenth amendment. The “rational

relationship” test for egual protection

requires that a classification under a

statute “be rationally related to a legiti-

mate state interest." New Orleans v.

Dukes, 427 U.S. 297 (1976). The court

ignored the fact that the classification in

RCW 72.33.670 (1981) obviously occurred due

to a legislative drafting error, and then

compounded its mistake by inferring legis-

lative intent which clearly didn't exist.

The intent of the Washington Legisla-

ture was explicitly spelled out in RCW

72.33.650 (1981):

The purpose of RCW 72.33.670

through 72.33.700 is to place the

responsibility for cost of care,

support and treatment upon those

residents of state residential

24

schools who possess assets over and

above the minimal amount required to

be retained for personal use .. .

Clearly, the Legislature intended the

"class" under the statute to be all resi-

dents able to pay. However, through legis-

lative drafting error, the Legislature

failed to provide any notice or opportunity

for hearing to adult residents who did not

have guardians of their estates. The

Supreme Court of Washington correctly ruled

in Duffy v. Social & Health Services, 90

Wn.2d 673, 583 P.2d 470 (1978), that due

process required personal service on adult

residents not subject to a legal declara-

tion of disability, thus invalidating

collections from those individuals under

the deficient statute.

After Duffy, collection of funds from

any other residents, under RCW 72.33.670

(1981), while not collecting from the

persons protected by Duffy, violated equal

protection of the laws. Again, the class

25

intended by the hegislative scheme was all

residents financially able to pay for care.

Those properly served under the statute

had to continue paying. Those omitted

from service by the drafting error, al-

though also able to pay, were, after

Duffy, exempt from collection. Identically

situated residents were classified differ-

ently due to a legislative mistake, not a

“rational relation to a legitimate state

interest."

Incredibly, in this case, the Supreme

Court of Washington ignores its own holding

in Duffy by allowing continued collection,

regardless of judicially determined incom-

petency, under RCW 72.33.6700 (1981). The

court presumes that the Legislature in-

tended to classify residents based upon

legal competency (App. A, p. A-8). The

court reasoned that residents competent

26

to respond to notice should be personally

served. However, residents judged legally

incompetent shouid not be served, as they

could not respond to notice effectively

(App. A, p. A-=-9).

This is certainly a commendable goal.

Unfortunately for the court, the Washington

Legislature never stated, implied or

intended such a classification. The

statute is silent as to service on adult

residents who do not have a guardian of the

estate. The statute's silence concerning

service on such residents is explicitly the

basis used by the Washington State Supreme

Court in the Duffy case for declaring the

service provisions constitutionally defec-

tive for persons not declared incompetents

(and, presumptively, for all others not

having a guardianship of the estate).

The court's ruling in this case

upholds as constitutionally valid, service

on adult residents not subject to a legal

27

declaration of incompetency. This appar-

ently overcomes the Duffy determination

that the statutory method provided is

constitutionally defective. Yet, RCW

72.33.670 (1981) has not subsequently

been amended and remains silent as to the

“presumed legislative intent" that the

court's decision hinges upon.

Even if the statute was amended to

provide for personal service on adult

residents not subject to both a declaration

of incompetency and appointment of a

guardianship of the estate, Argument I of

this petition still demonstrates the

constitutional deficiencies of the present

notice procedures allowed by Wash. Admin.

Code 275-20-080 (1980). The statute

must fall on equal protection grounds, as

well as due process grounds.

28

III. The Supreme Court of Washington

Validated an Impermissibly Vague

Statute Which Provides no Socuoclee

Or Guidance for a Method of Service

Or Opportunity for Hearing for

Residents Not Named in the Statute,

Thus Allowing Collection From Such

Residents Based Upon the Discretion-

ary Whim of State Officials

The Supreme Court of Washington com-

pounded its error in its equal protection

analysis by refusing to strike down RCW

72.33.670 (1981) on grounds of vagueness

and/or impermissible discretion. The

statute speaks only to service upon resi-

dents with a guardian of the estate. It is

silent as to residents who have guardians

of the person, residents found legally

incompetent but without guardians of the

person and/or estate, residents declared

partially disabled and those residents not

subject to a legal declaration of incompe-

tency at all, all of whom are represented

by name as plaintiffs in this action.

Duffy and the opinion in this case deal

29

exclusively with residents not subject to a

legal declaration of incompetency, and the

manner of service on them.

The result is impermissible discretion

allowed to state officials in determining

whether to collect from and the manner of

service upon those residents not mentioned

in the statute. There is nothing in the

statute which can offer guidance. Collec-

tion from residents not mentioned in the

statute should occur under the clear

guidance of the Legislature, as evidenced

by its statutory command in RCW 72.33.670

(1981), not at the whim or desire of state

officials absent statutory methods.

To explain the: dangers inherent in the

present situation, an analogy can be drawn

to cases dealing with the right of freedom

of expression under the first amendment to

the Constitution. The Supreme Court of the

United States has consistently held sta-

tutes unconstitutional which permit public

30

officials to issue or withhold permits for

parades, refuse to permit leafleting, and

limit other forms of expression, based upon

the official's discretion, where no clear

guidelines exist in the statute. See

Lovell v. Griffin, 303 U.S. 444 (1938);

Staub v. Baxley, 355 U.S. 313 (1958). The

court has recognized the dangers in making

the exercise of freedom of speech “contin-

gent upon the uncontrolled will of an

official." Staub, at 322.

In view of the importance of the right

involved here, the right to notice and

opportunity to be heard before deprivation

of property, the same reasoning is applic-

able. As me2ntioned above, there is no

guidance in the statute as to collection

from residents not expressly mentioned in

the statute. Collection from residents

with only a guardian of the person, or

residents who have actual but non-judici-

ally declared incompetency, is clearly

31

contingent upon the uncontrolled will of

the state officials. The possibility of

the arbitrary exercise of power must

be coupled with the inherent vagueness of

the statute to rule it inoperable as to

residents who are not designated to be

served notice by the statute.

In criminal law concepts, another

analogy is pertinent. It is a longstanding

principle of constitutional law that

criminal statutes which are facially vague,

such that adequate notice is not provided

“to a person of ordinary intelligence that

his contemplated conduct is illegal,”

Buckley v. Valeo, 424 U.S. 1 (1976), are

unconstitutional. The vagueness doctrine

has been extended beyond the area of

criminal law and a “state statute must meet

the challenge that it is inconstitutionally

vague whether it is labeled penal or not.”

Giaccio v. Penn, 382 U.S. 399 (1966).

32

RCW 72.33.670 (1981) goes beyond

mere vagueness. The statute makes no men-

tion of service upon residents with only

a guardian of the person or legally incom-

petent residents without guardians. There

is certainly no warning in the statute to

those residents of the state's procedures

against them, and the statute must be ruled

unconstitutional on grounds of vagueness.

IV. If RCW 72.33.670 (1981) Is Invalid on

Either Due Process or Equal Protection

Grounds, the Statute Violates RCW

49.60.030 (1981), the Washington

Anti-Discrimination Law

The Supreme Court of Washington

erroneously concluded that RCW 72.33.670

(1981) did not violate RCW 49.60.030

(1981), the Washington Anti-Discrimination

Law. If the statute is found unconstitu-

tional due to violation of either the due

process clause or equal protection clause,

allowing continued collection from some

residents, but not others solely based upon

33

mental incompetency, the result is discrim-

ination on the basis of mental handicap.

RCW 49.60.030(1) provides:

The right to be free from discrim-

ination because of race, creed,

color, national origin, sex, or the

presence of any sensory, mental or

physical handicap is recognized as

and declared to be a civil right.

The Washington Supreme Court concluded

that the classification resulting from its

decision “is based upon the presence or

absence of legal incompetency,” (App. A, p.

A-10). There is little difference between

a statute based upon legal incompetency or

mental handicap, which RCW 49.60.030(1)

(1981) prohibits. One simply results in

the other and, thus, the court's own

reasoning acknowledges that the statute

is based upon impermissible classification.

Since the Washington courts failed to

require conformance to constitutional

mandates, it falls to the Supreme Court of

the United States to do so. A ruling by

34

the Supreme Court of the United States that

RCW 72.33.670 (1981) is unconstitutional,

due to the improper service and appeal

provisions under the due process clause of

the fourteenth amendment, would mean that

no collection could occur from adult

residents not subject to a legal declara-

tion of disability. Collection from

residents who are subject to a legal

declaration of disability would constitute

collection based upon a mental or physical

handicap. This would violate RCW 49.60.-

030(1) (1981).

Alternatively, the court could rule

that RCW 72.33.670 (1981) is unconstitu-

tional under the equal protection clause,

because it permits collection from resi-

dents subject to a guardianship of the

estate while omitting, due to lack of

proper service, collection from similarly

situated residents, without such specific

guardianships. If so, this would mean

35

collection violated RCW 49.60.030(1)

(1981), as again, it would be based on

mental handicap.

In either case, RCW 49.60.030(1)

(1981) would be violated, as some residents

would be discriminated against. The

petitioners should then be allowed, under

RCW 49.60.030(2) (1981), to “recover the

actual damages sustained by him...

together with the costs of suit, including

reasonable attorneys’ fees...

CONCLUSION

For these reasons, a Writ of Certior-

ari should issue to review the judgment and

opinion of the Supreme Court of Washington.

DATED this 25th day of October, 1982.

Respectfully submitted,

SWEET, DUSSAULT, NEFF &

GIBBS, P.S.

By: WILLIAM L. E. DUSSAULT

Attorneys for Petitioners