§ 21.3 Prerequisites to Obtaining Judicial Review

• Jurisdiction: Washington

§21.3 PREREQUISITES TO OBTAINING JUDICIAL REVIEW

A person must have standing to seek judicial review of administrative action and almost always must exhaust available administrative procedures. Also, the issues must be "ripe" for review. If any of these requirements is lacking, judicial review is either premature or otherwise unavailable.

(1) Standing

Standing requirements determine who may bring a case before the court. See Peter L. Strauss, An Introduction to Administrative Justice in the United States 225-28 (1989); William R. Andersen, The 1988 Washington Administrative Procedure Act—An Introduction, 64 Wash. L. Rev. 781, 823-26 (Oct. 1989).

Standing requirements can vary depending on the applicable statute or the circumstances. For example, the court has cautioned against a "liberalization in standing requirements" under the APA. Allan v. Univ. of Wash., 140 Wn.2d 323, 329 n.1, 997 P.2d 360 (2000) (APA case).

On the other hand, in Grant County Fire Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 803, 83 P.3d 419 (2004), vacated in part on rehearing on other grounds, 150 Wn.2d 791 (2004), the court noted its policy is to apply a "more liberal" approach to standing if a case "is of substantial public importance, immediately affects significant segments of the population, and has a direct bearing on commerce, finance, labor, industry, or agriculture." However, that policy applies only when necessary to assure that "the important public issues raised did not escape review." Id. A "liberal" standing policy does not apply to efforts to "increase or secure a tax base," and it does not confer standing on one person if there is already a party with standing to raise the issue. Id. at 803-04.

In some instances, a specific statute may prescribe who is entitled to seek judicial review of administrative action. For example, RCW 36.93.160(5) states that only persons owning real property or residing in the area affected by a decision of a boundary review board may seek judicial review of board decisions.

Another example involves appeals from decisions of the Growth Management Hearings Board. Most persons who petition for a Growth Management Hearings Board review of a local government action claim standing by virtue of their participation in the proceeding before the agency ("participation standing"), as permitted by RCW 36.70A.280(2)(b), rather than APA standing under RCW 36.70A.280(2)(d) and RCW 34.05.530. Thus, even though judicial review of the boards' decisions proceeds under the APA, a person may establish standing by participating in the agency proceeding. See Stevens County v. E. Wash. Growth Mgmt. Hearings Bd., 163 Wn. App. 680, 687, 262 P.3d 507 (2011), review denied, 173 Wn.2d 1019 (2012); Project for Informed Citizens v. Columbia County,92 Wn. App. 290, 294-97, 966 P.2d 338 (1998) (construing RCW 36.70A.300(5)), review denied,137 Wn.2d 1020 (1999).

However, personal "participation standing" requires the person to have participated on his or her own behalf, not as a representative or member of an organization. Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hearings Bd., 155 Wn. App. 479, 487-88, 230 P.3d 608 (construing former RCW 36.70.280(4)), rev'd, 170 Wn.2d 577 (2010).

Absent a statute that expressly allows participation standing, participation in an agency proceeding does not necessarily confer standing for purposes of judicial review. Patterson v. Segale, 171 Wn. App. 251, 257, 289 P.3d 657 (2012).

(a) Standing under the APA

Under the APA, standing must be based on a "factual showing of perceptible harm." Allan v. Univ. of Wash., 140 Wn.2d at 328-29 (internal quotation marks omitted). A petitioner must also demonstrate it is "substantially prejudiced" before a court may grant relief. RCW 34.05.570(1)(d). Moreover, a petition for judicial review in an APA case must contain "facts to demonstrate that the petitioner is entitled to obtain judicial review," in addition to other information. RCW 34.05.546(6). See §21.5(1)(a).

The person seeking judicial review has the burden of establishing standing. RCW 34.05.530; Snohomish Cnty. Pub. Transp. Benefit Area v. Pub. Emp't Relations Comm'n, 173 Wn. App. 504, 512, 294 P.3d 803 (2013); KS Tacoma Holdings, LLC v. Shorelines Hearings Bd., 166 Wn. App. 117, 127, 272 P.3d 876, review denied, 174 Wn.2d 1007 (2012).

For purposes of the APA, a "person" has standing to obtain judicial review "if that person is aggrieved or adversely affected by the agency action." RCW 34.05.530. "Person" is broadly defined to include natural persons, businesses, and other groups, as well as another state agency. RCW 34.05.010(14).

"Aggrieved or adversely affected" means:

(1) The agency action has prejudiced or is likely to prejudice that person;

(2) That person's asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and

(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.

RCW 34.05.530(1)-(3).

Each of these standing requirements must be established. RCW 34.05.530. Because the APA standards were derived from federal case law, courts will use federal precedent that applies similar requirements. RCW 34.05.001; Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council,129 Wn.2d 787, 793-94, 920 P.2d 581 (1996), cert. denied, 520 U.S. 1210 (1997); Wells Fargo Bank, NA v. Dep't of Revenue, 166 Wn. App. 342, 355, 271 P.3d 268, review denied, 175 Wn.2d 1009 (2012); KS Tacoma Holdings, 166 Wn. App. at 126-27; Nat'l Elec. Contractors Ass'n v. Emp't Sec. Dep't, 109 Wn. App. 213, 220, 34 P.3d 860 (2001).

"Prejudice" or "likely prejudice" to the petitioner. The APA standing requires that the agency action has "prejudiced or is likely to prejudice" the petitioner. RCW 34.05.530(1). This reflects one aspect of the "injury in fact" requirement of standing. Seattle Bldg. & Constr. Trades Council, 129 Wn.2d at 793-94. Under this requirement, the petitioner must have a substantial and concrete interest adversely affected by the agency action.

An interest is "substantial" if it is more than "a mere expectancy, or future, contingent interest." State ex rel. Hays v. Wilson,17 Wn.2d 670, 672, 137 P.2d 105 (1943). Thus, in Hays v. Wilson, police officers lacked standing to challenge the conditional appointment of a police chief because the final appointment required the appointee to pass the same tests as any other applicant. There was no injury until the appointment was finalized. See also Allan, 140 Wn.2d at 332-33 (harm alleged by past adjudicative process could not confer standing because the chance of a future adjudication under those procedures was speculative and remote).

Put another way, "[i]f the injury is merely conjectural or hypothetical, there can be no standing." Trepanier v. City of Everett,64 Wn. App. 380, 383, 824 P.2d 524, review denied,119 Wn.2d 1012 (1992). If the alleged injury is threatened rather than existing, the person must show the threat will result in a concrete and specific injury to that person. KS Tacoma Holdings, 166 Wn. App. at 129.

An interest is "concrete" if the agency action has a real impact on the petitioner. A financial interest suffices, even if the alleged injury is not immediate. Seattle Bldg. & Constr. Trades Council, 129 Wn.2d at 795; see also Grant Cnty. Fire Prot. Dist. No. 5, 145 Wn.2d at 714 (financial impact of increased property taxes is sufficiently concrete); Snohomish Cnty. Pub. Transp. Benefit Area, 173 Wn. App. at 513-14 (reduced negotiation leverage constituted sufficient economic injury, based on a showing of conditions changed by the agency decision); KS Tacoma Holdings, 166 Wn. App. at 131-35 (bare assertions were insufficient to demonstrate that a shorelines permit revision would adversely impact future development).

The court will look to the impact caused by the agency decision at issue, not the impacts of a prior, related decision that is not before the court on judicial review. KS Tacoma Holdings, 166 Wn. App. at 129-31 (court would evaluate only the injury allegedly due to the impact of the challenged revision to a shoreline development permit, not the injury allegedly due to the impact of the overall shoreline development permit or a prior revision thereto).

If the petitioner's interest is not adversely affected by the decision, the court will dismiss for lack of standing. Allan, 140 Wn.2d at 331-32 (wife of university professor lacked standing to challenge the validity of the university's rules of procedure used in disciplinary proceeding because, among other things, she did not share her husband's interest in university employment); see also Sierra Club v. Morton,405 U.S. 727, 734-36, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972) (environmental organization that did not allege harm to its members lacked standing to challenge governmental authorization to develop a ski resort).

The Washington Supreme Court has held that a violation of a procedural rule might be sufficient to confer standing, even if the injury was indirect and speculative, but the procedural right had to be accorded "to protect [the petitioner's] concrete interests." Seattle Bldg. & Constr. Trades Council, 129 Wn.2d at 794-95 (internal quotation marks omitted); accord Allan, 140 Wn.2d at 330. However, a person lacks standing to challenge an agency's decision to dismiss its own enforcement action against that person because that person is not adversely affected by such a decision. Lawrence v. Dep't of Health,133 Wn. App. 665, 677-78, 138 P.3d 124 (2006).

The "zone of interest" requirement. The second requirement for APA standing is that the petitioner's "asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged." RCW...