§ 21.10 Conduct of Judicial Review

• Jurisdiction: Washington

§21.10 CONDUCT OF JUDICIAL REVIEW

The applicable statutes typically describe how the court conducts judicial review of administrative action. However, local court rules should also be consulted. The superior court rules in some counties have provisions specific to judicial review of administrative action. Described below are some procedures applicable to most administrative reviews, followed by some procedures specific to judicial review in the Administrative Procedure Act, Ch. 34.05 RCW; Land Use Petition Act, Ch. 36.70C RCW; workers' compensation; and implied consent cases.

(1) Briefs and briefing schedule

In the appellate courts, the contents of briefs are prescribed by the Rules of Appellate Procedure (see discussion of RAPs specific to judicial review of administrative action in §21.14(1)), and the filing schedule is determined by the court and communicated to the parties. See Chapter 14 of this deskbook.

In superior court reviews of administrative action, briefing requirements can vary widely across counties. For example, Thurston County LCR 40(b)(3)(C) requires the administrative record to be filed before a case is considered ready to be scheduled. Thurston County also has a local rule that requires the petitioner to submit a brief 45 days before oral argument; the respondent must submit a brief 25 days before oral argument; and the petitioner may submit a reply brief 15 days before oral argument. Thurston County LCR 5(d)(1)(B). King County does not have a rule that explicitly sets forth the procedures for administrative reviews. However, King County issues a case schedule for each civil case that is customized according to the case type. The case schedule for review of administrative decisions typically puts the case on a faster track and sets forth deadlines for the filing of the administrative records and the parties' briefs. Some other counties, such as Snohomish, require the appealing party to file a note for trial setting to move the case along by having it assigned to a judge.

Practice Tip: Always check the local rules for the county where the appeal is filed, but bear in mind that many counties have no formal procedures in place for judicial review of administrative action In these counties, it is a good idea to reach consensus among counsel on filing the record, the briefing schedule, and oral argument date so the appeal progresses. If counsel are unable to reach consensus, most judges are amenable to scheduling a telephonic status conference for the purpose of setting briefing deadlines. Scheduling a status conference with a judge may also be a good opportunity to educate the judge if the appeal is going to be heard in a county that rarely receives APA or other administrative appeals.

In the superior court, briefs can be loosely modeled after appellate briefs and should include a statement of facts, applicable standards of review, and an argument section. If the appellant fails to timely file a brief, the responding party may move to dismiss the case for lack of prosecution under CR 41.

(2) Oral argument

In the appellate courts, the court will set the time for argument. In the superior courts, the time given for oral argument can vary widely. Many superior court judges strictly limit the parties' time to 10 or 20 minutes, whereas other judges may set aside a half day for administrative appeals and let the parties take as much time as needed.

Practice Tip: It is a good idea to check with the superior court judge's assistant when scheduling oral argument to find out whether the judge will limit the parties' time. If the administrative record is extensive, you should remind the judge's assistant about the need for the judge to schedule time to review the record prior to oral argument. If the appeal is being heard in a court that hears few cases involving judicial review of administrative action, your argument should summarize the applicable review standards and the role of the agency record.

(3) Conduct of judicial review under the APA

Regardless of the type of agency action being challenged, there are four elements common to APA judicial review in all contexts: (1) the burden...