§ 21.5 Filing and Service Requirements for Initiating Judicial Review Proceedings and Cross Appeals

• Jurisdiction: Washington

§21.5 FILING AND SERVICE REQUIREMENTS FOR INITIATING JUDICIAL REVIEW PROCEEDINGS AND CROSS APPEALS

"Because an appeal from an administrative body invokes the superior court's appellate jurisdiction, '"all statutory requirements must be met before jurisdiction is properly invoked."'" Skinner v. Civil Serv. Comm'n, 168 Wn.2d 845, 850, 232 P.3d 558 (2010) (quoting Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 197, 796 P.2d 412 (1990) (quoting Spokane County v. Utils. & Transp. Comm'n, 47 Wn. App. 827, 830, 737 P.2d 1022 (1987))); see also Diehl v. W. Wash. Growth Mgmt. Hearings Bd., 153 Wn.2d 207, 217, 103 P.3d 193 (2004).

There has been considerable litigation regarding the filing and service requirements for judicial review of administrative decisions because the consequences of noncompliance may be harsh, including dismissal of the petition.

Appeals to superior court from administrative decisions are unlike appeals to the appellate courts from superior court judgments. In particular, unless the applicable review statute states to the contrary, the methods for filing and service in the appellate courts do not apply to the filing and service of petitions for judicial review of administrative action because the court rules are applicable "only after the commencement of an action." Diehl, 153 Wn.2d at 214-17. Put another way, because the court rules are procedural, they are not to be used to invoke the court's jurisdiction in a particular case. Reeves v. Dep't of Gen. Admin., 35 Wn. App. 533, 537, 667 P.2d 1133, review denied, 100 Wn.2d 1030 (1983); see also RCW 34.05.510(2) (ancillary procedural matters are governed by court rule only "to the extent not inconsistent with [the Administrative Procedure Act, Ch. 34.05 RCW]"; Shumway v. Payne, 136 Wn.2d 383, 399, 964 P.2d 349 (1998) (RAP 1.2(c) and RAP 18.8 cannot permit the court to waive statutory time limits for filing petitions for judicial review).

Practice Tip: If the agency serves its decision by mail, do not assume CR 6(e) adds three days to the statutory time period for seeking judicial review of that decision. For example, the APA clearly prescribes that service of an agency final order in an adjudication is complete when the order is placed in the mail, and the 30-day period for filing a petition for judicial review of that order starts after that date. RCW 34.05.010(19),34.05.542(2). The court has required a petitioner to comply with similar statutes, and has not applied CR 6(e) to extend the filing deadline. E.g., Estate of Toth, 138 Wn.2d 650, 657, 981 P.2d 439 (1999); cf Stikes Woods Neighborhood Ass'n v. City of Lacey, 124 Wn.2d 459, 880 P.2d 25 (1994) (court applied CR 6(e) in the face of a provision of the former APA (former Ch. 34.04 RCW), but that provision did not contain a clear timing directive similar to the current APA). By contrast, in cases under the Land Use Petition Act, Ch. 36.70C RCW, the statute adds three days to the date the land use decision is mailed. RCW 36.70C.040(4)(a).

The government may prescribe the conditions under which judicial review of administrative action is available. Wells Fargo Bank, N.A. v. Dep't of Revenue, 166 Wn. App. 342, 358, 271 P.3d 268 (APA judicial review procedures are a limitation to general waiver of sovereign immunity), review denied, 175 Wn.2d 1009 (2012).

When the statutory procedures for obtaining judicial review have not been followed, the party may not use any other procedure to collaterally attack the administrative decision. Lewis County v. Pub. Emp't Rel. Comm'n, 31 Wn. App. 853, 863, 644 P.2d 1231, review denied, 97 Wn.2d 1034 (1982); see also Bock v. State, 91 Wn.2d 94, 98, 586 P.2d 1173 (1978) (failure to follow statutory procedures does not justify resort to extraordinary writs such as mandamus or prohibition). The Washington Supreme Court did not permit collateral attacks on administrative action in the following LUPA cases: (1) Twin Bridge Marine Park, L.L.C. v. Department of Ecology, 162 Wn.2d 825, 845, 175 P.3d 1050 (2008) (Department of Ecology could not use its enforcement authority under the Shoreline Management Act to collaterally attack a county decision to reinstate building permits; the department needed to file a land use petition to seek judicial review of that county decision); (2) Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11, 120 P.3d 56 (2005) (challenge to grading permit may not be used to challenge special use permit); (3) James v. Kitsap County, 154 Wn.2d 574, 115 P.3d 286 (2005) (a class-action lawsuit seeking refunds of impact fees may not be used when the claimants failed to seek judicial review under LUPA when those fees were imposed); (4) Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 181, 4 P.3d 123 (2000) (challenge to plat approval may not be used to challenge a rezone decision).

Similarly, other parties may not confer jurisdiction upon the reviewing court by waiver or estoppel. Skagit Motel v. Dep't of Labor & Indus., 107 Wn.2d 856, 858-59, 734 P.2d 478 (1987) (waiver); Jones v. Dep't of Corrs., 46 Wn. App. 275, 279, 730 P.2d 112 (1986) (estoppel). Lack of prejudice to the government is not an issue. Banner Realty, Inc. v. Dep't of Revenue, 48 Wn. App. 274, 277-78, 738 P.2d 279 (1987).

However, the rule that a petitioner must comply with applicable petition filing and service requirements to invoke the court's jurisdiction does not apply to statutory filing requirements after the petition is served and filed, such as the requirement in LUPA, RCW 36.70C.080(1), that the petitioner note an initial hearing within seven days of serving its land use petition. Knight v. City of Yelm, 173 Wn.2d 325, 338, 267 P.3d 973 (2011); Conom v. Snohomish County, 155 Wn.2d 154, 163, 118 P.3d 344 (2005).

Because the issue of noncompliance with filing and service requirements goes to jurisdiction, any party can raise the issue at any time. Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit Cnty., 135 Wn.2d 542, 556, 958 P.2d 962 (1998) (citing In re Saltis, 94 Wn.2d 889, 893, 621 P.2d 716 (1980); RAP 2.5(a)(1)); see also Litowitz v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 93 Wn. App. 66, 68, 966 P.2d 422 (1998). The discussion in §21.5(1)(a), (2)(c), and (4)(c) identifies some exceptions to this rule.

The particular judicial review statute may dictate the consequences of noncompliance. For example, in implied consent appeals, the rules state that failure to timely file the notice of appeal will result in dismissal, although in limited prescribed circumstances, the court can excuse tardiness. See §21.5(4)(c). Similarly, LUPA states that dismissal of a land use petition is required if the petitioner fails to timely serve necessary parties. RCW 36.70C.040(2), (3). See §21.5(2)(c), (d).

When the statute is silent on whether statutory filing and service requirements must be complied with to avoid dismissal, the court may apply the "substantial compliance" rule. "Substantial compliance" is defined as satisfying the "spirit" of a procedural requirement, "albeit with procedural imperfections," or "actual compliance in respect to the substance essential to every reasonable objective of [the] statute." Black v. Dep't of Labor & Indus., 131 Wn.2d 547, 552, 933 P.2d 1025 (1997) (quoting City of Seattle v. Pub. Emp't Rel. Comm'n, 116 Wn.2d 923, 928, 809 P.2d 1377 (1991)).

The substantial compliance rule applies in workers' compensation cases reviewed under RCW 51.52.110. Black, 131 Wn.2d at 553; In re Saltis, 94 Wn.2d 889, 896, 621 P.2d 716 (1980). See §21.5(3)(c). The substantial compliance rule also applies in cases involving industrial insurance assessments under Chapter 51.48 RCW. Cont'l Sports Corp. v. Dep't of Labor & Indus., 128 Wn.2d 594, 602, 910 P.2d 1284 (1996).

In other cases in which the governing statute is silent on whether statutory filing and service requirements must be complied with to avoid dismissal, however, the court has applied a "strict compliance" rule. Waiver of any requirement that is essential to invoke the court's appellate jurisdiction is granted only rarely, if ever. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 113 Wn. App. 142, 154-56, 53 P.3d 44 (2002).

As discussed in §21.5(1)(a), (b), and (c), under the Administrative Procedure Act, Ch. 34.05 RCW, although the court has applied the strict compliance rule with regard to filing time requirements, requirements for service on parties, and payment of the filing fee, it is unlikely the court will apply that rule to filing location requirements, and it is not clear what rule applies to petition contents requirements.

Practice Tip: Because there is a risk of dismissal for noncompliance with APA filing and service requirements, when in doubt, assume the court will apply the strict compliance rule, and follow the statute that prescribes those filing and service requirements.

(1) Filing and service under the APA

The APA calls the pleading initiating judicial review of most agency action a "petition" (RCW 34.05.514), a "petition forjudicial review" (RCW 34.05.534), and a "petition for review" (RCW 34.05.546). "Petition for judicial review" is commonly used.

The petitioner has the burden of proving compliance with APA filing and service requirements. Diehl v. W. Wash. Growth Mgmt. Hearings Bd., 118 Wn. App. 212, 218, 75 P.3d 975 (2003), rev'd on other grounds, 153 Wn.2d 207, 103 P.3d 193 (2004).

Caveat: Judicial review of rules can be obtained two ways: by a petition for declaratory judgment on the validity of a rule; or "in the context of any other review proceeding under this section," RCW 34.05.570(2), such as in a petition for judicial review of a final order or "other agency action." If the petitioner elects to challenge a rule in the context of a proceeding for judicial review of a final order or other agency action, the filing and service procedures applicable to those proceedings should be

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