§ 21.8 Seeking Direct Review By The Appellate Courts

• Jurisdiction: Washington

§21.8 SEEKING DIRECT REVIEW BY THE APPELLATE COURTS

"Direct review" is review by the Court of Appeals without a prior decision by the superior court. Direct review is generally not permitted in judicial review of administrative action.

An exception is the Administrative Procedure Act, Ch. 34.05 RCW, which authorizes direct review by the Court of Appeals, but only for petitions for review of a final decision of an agency in an adjudicative proceeding. RCW 34.05.518. Thus, direct review is unavailable for other forms of judicial review under the APA, such as petitions for declaratory judgments on the validity of rules or judicial review of "other agency action."

The superior court may certify a case for direct review only if judicial review is limited to the record of the agency proceeding. RCW 34.05.518(2). Thus, direct review is not available for appeals that require development of new evidence, as permitted under RCW 34.05.562.

(1) APA procedures for obtaining direct review by the Court of Appeals of decisions by agencies other than environmental boards

RCW 34.05.518 and .522 set forth the basic procedures for obtaining direct review by the Court of Appeals, RAP 2.1(c), although the procedures in RAP 6.2 also apply. RAP 6.3.

For decisions of agencies other than environmental boards, direct review is initiated by an "application for direct review" filed in the superior court, within 30 days from when the petition for judicial review was filed. RCW 34.05.518(2).

CR 7(b) states that an "application" to the superior court for an order shall be made by motion. The other Civil Rules of Procedure should apply to that motion, because such procedures should be considered "ancillary procedural matters" per RCW 34.05.510(2). The following criteria must be established in that motion:

(a) Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;

(b) Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or the public interest;

(c) An appeal to the court of appeals would be likely regardless of the determination in superior court; and

(d) The appellate court's determination in the proceeding would have significant precedential value.

RCW 34.05.518(2)(a)-(d).

The application of these criteria will be case specific. Some cases in which direct review has been granted have involved issues of statewide importance, while others have had less obvious justification. E.g., Pasco Police Officers' Ass'n v. City of Pasco,132 Wn.2d 450, 938 P.2d 827 (1997) (collective bargaining rights of management and police union under the Public Employees' Collective Bargaining Act, RCW 41.56); People's Org. for Wash. Energy Res. v. Utils. & Transp. Comm'n,101 Wn.2d 425, 679 P.2d 922 (1984) (agency allowed electric utility to earn a return on $48 million of plant under construction that therefore provided no electricity); Batey v. Emp't Sec. Dep't,137 Wn.App. 506, 154 P.3d 266 (2007) (constitutional challenge to amendment to employment security statute based on claim that bill violated subject in title rule), aff'd on other grounds sub nom. Spain v. Emp't Sec. Dep't,164 Wn.2d 252, 185 P.3d 1188 (2008); City of Spokane v. Dep't of Labor & Indus., 100 Wn.App. 805, 998 P.2d 913 (2000) (application of prevailing wages on Public Works Act to maintenance work on a city's facilities); Pub. Sch. Emps. v. Emp't Rel. Comm'n,77 Wn.App. 741, 893 P.2d 1132 (labor dispute over the proper classification of office-clerical employees at public schools), review denied,127 Wn.2d 1019 (1995); Int'l Ass'n of Fire Fighters, Local 1445 v. City of Kelso,57 Wn.App. 721, 790 P.2d 185 (Public Employment Relations Commission order granting labor union relief based on a city commission's unfair labor practices), review denied,115 Wn.2d 1010 (1990); Newlun v. Dep't of Ret. Sys.,53 Wn.App. 809, 770 P.2d 1071 (summary judgment decision granting a police officer a right to retirement contributions), review denied,113 Wn.2d 1014 (1989); Othello Cmty. Hosp. v. Emp't Sec. Dep't,52 Wn.App. 592, 762 P.2d 1149 (1988) (administrative determination that former employee was eligible to receive unemployment compensation), review denied, 112 Wn.2d 1018 (1989).

Once the superior court has entered an order granting the application for direct review based on the APA criteria, the Court of Appeals must decide whether or not to accept direct review. According to RAP 6.3, the Court of Appeals makes its decision "by entering...