Allan v. University of Washington

• Decision Date: 20 April 2000
• Docket Number: No. 67294-6.,67294-6.
• Citation: 997 P.2d 360,140 Wash.2d 323
• Court: Washington Supreme Court
• Parties: Margaret ALLAN, Petitioner, v. The UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Respondent.

997 P.2d 360

140 Wash.2d 323

Margaret ALLAN, Petitioner, v. The UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Respondent.

No. 67294-6.

Supreme Court of Washington, En Banc.

Argued November 16, 1999.

Decided April 20, 2000.

Hall, Zanzig & Widell, Spencer Hall, Seattle, for Petitioner.

Bennett, Bigelow & Leedom, Michael F. Madden, Seattle, for Respondent.

MADSEN, J.

Margaret Allan, Petitioner, petitioned in Thurston County Superior Court for a declaratory judgment to invalidate procedures adopted by the University of Washington (UW), Respondent, that amended the adjudication process for faculty disciplinary matters provided for in Chapter 28 of the UW Faculty Code. Allan, the wife of a UW professor, argued that the procedures had been promulgated in violation of the Administrative Procedure Act (APA), chapter 34.05 RCW. The trial court agreed and granted summary judgment to Allan. The UW appealed, arguing that Allan lacked standing to initiate her lawsuit. The Court of Appeals, Division Two, reversed. It found that Allan lacked standing and, accordingly, did not reach the APA question. Allan petitioned for our review. We granted review, and affirm the Court of Appeals.

FACTS

The relevant facts are uncontroverted in this case. Margaret Allan is the wife of UW Professor Graham Allan. Professor Allan was the subject of a 1989 sexual harassment claim brought by a UW student. In response to that claim, the UW suspended and sought to terminate Professor Allan, but he appealed that action to a faculty committee which reinstated him following proceedings in which his wife was a participant, with separate counsel, under subpoena.

The student subsequently sued the UW, and that lawsuit was settled in 1991. Part of the settlement was an agreement that the UW would seek to have the Faculty Senate change the procedures governing faculty members' appeals of discipline arising out of student complaints. UW President William Gerberding subsequently proposed and strongly encouraged, in a 1992 letter to the chair of the Faculty Senate, changes to the "Faculty Code Adjudicative Procedures" that mirrored the settlement language. Clerk's Papers (CP) at 145. Prior to the adoption of the changes, Allan, through counsel, advised the chair of the Faculty Senate that it was her belief that the UW must comply with the APA in adopting any proposed rule changes—including providing opportunity for public comment—or the changes would be invalid. In response, the UW Division of the Attorney General's Office conveyed to Allan's attorney its opinion that "[t]he revision to the faculty adjudication procedures is not subject to the Administrative Procedures Act because, under RCW 34.05.010(15), rules of institutions of higher education involving employment relationships are not `rules' within the meaning of the APA." CP at 330.

Changes to the adjudicative procedures in Chapter 28 of the Faculty Code were enacted in 1994 by a faculty vote. Following that, Allan petitioned for declaratory relief in Thurston County Superior Court — requesting that the court declare the rules invalid and set them aside. The UW moved to dismiss for lack of standing, and the trial court denied this motion and a motion to reconsider. The parties then cross-moved for summary judgment, with neither contending that any issues of material fact precluded the grant of their motions. The trial court issued an oral ruling and entered an order granting Allan's motion in June 1996. The UW appealed, and the Court of Appeals, Division Two, reversed the trial court— finding that Allan lacked standing to challenge the revisions to the Faculty Code, and thus did not address the question of whether the process of promulgating those revisions was in compliance with the APA. See Allan v. University of Washington, 92 Wash.App. 31, 959 P.2d 1184 (1998)

. Allan petitioned for our review, and review was granted.

ANALYSIS

The threshold question in this case is whether Margaret Allan has standing to challenge the 1994 revisions to the Faculty Code. The Court of Appeals analyzed Allan's claim under the APA standing rule, RCW 34.05.530:

A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning of this section only when all three of the following conditions are present:

(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.

(Emphasis added.)

Of this test, the Court of Appeals wrote that "[t]he first and third prongs are generally called `injury-in-fact' requirements, while the second is called the `zone of interest' prong." Allan, 92 Wash.App. at 36, 959 P.2d 1184 (citing St. Joseph Hosp. & Health Care Ctr. v. Department of Health, 125 Wash.2d 733, 739, 887 P.2d 891 (1995)). The court observed that our statutory test "is drawn from and explained by federal case law." Allan, 92 Wash.App. at 36, 959 P.2d 1184 (citing RCW 34.05.001) (further citations omitted). Applying the test, the court found that "Mrs. Allan lacks standing under RCW 34.05.530 to seek judicial review of the University's action because she is not a person `aggrieved or adversely affected' by an agency action." Allan, 92 Wash.App. at 36, 959 P.2d 1184 (citing St. Joseph Hosp., 125 Wash.2d at 739, 887 P.2d 891).

Allan argues that "[t]he APA's standing provisions are generously applied." Br. of Resp't at 26 (citations omitted). To illustrate this argument she points to United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (SCRAP).). There the Supreme Court was confronted with a question of standing under the federal APA, and pointed to a number of cases in which the Court had allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote ... a $5 fine and costs ... and a $1.50 poll tax.... While these cases were not dealing specifically with ... the APA, we see no reason to adopt a more restrictive interpretation of `adversely affected' or `aggrieved.' As Professor Davis has put it: `The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.'"

Id. at 689 n. 14, 93 S.Ct. 2405 (emphasis added) (citations omitted) (quoting KENNETH CULP DAVIS, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 613 (1968)). However, the Court has subsequently left the viability of SCRAP `s commentary on standing doubtful by writing of it that its "expansive expression of what would suffice for ... review under its particular facts has never since been emulated by this Court...." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Furthermore, National Wildlife Fed'n declared SCRAP irrelevant for purposes of a motion for summary judgment because it involved a "motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), is heavily relied upon by the UW. There, where United States environmental groups sought to challenge, under the Endangered Species Act, the impact of a regulation upon animal species in foreign countries, the Court acknowledged that "[o]f course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Id. at 562-63, 112 S.Ct. 2130 (emphasis added) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). However, it held that the groups had to demonstrate "not only that listed species were in fact being threatened by funded activities abroad, but also that one or more... members would thereby be `directly' affected apart from their "special interest' in th[e] subject.'" Defenders, 504 U.S. at 563, 112 S.Ct. 2130 (alteration in original) (quoting Sierra Club, 405 U.S. at 735, 739, 92 S.Ct. 1361). In other words, "the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be ... among the injured." Sierra Club, 405 U.S. at 734-35, 92 S.Ct. 1361 (emphasis added).

In Defenders, the attempt to obtain standing was based upon affidavits from two environmental group members who had each once visited Africa and had never seen any endangered species there, but professed a desire to return at some indeterminate point in the future to try to observe endangered species. See Defenders, 504 U.S. at 563,

112 S.Ct. 2130. Not surprisingly, the Court noted that "[s]tanding ... requires, at the summary judgment stage, a factual showing of perceptible harm." Defenders, 504 U.S. at 566,

112 S.Ct. 2130.

While Allan is correct in pointing out that Defenders had "an incredibly attenuated fact pattern[,]" Br. of Resp't at 30 n.4, it is still applicable to her case. After all, under Defenders, Allan must demonstrate "a factual showing of perceptible harm." Defenders, 504 U.S. at 566,112 S.Ct. 2130. The harm Allan notes here is that she "participated as a party in the very adjudication and litigation which resulted in these changes." Br. of Resp't at 29. This is true. However, the agency's past action is not the one causing the asserted prejudice. See RCW 34.05.530(1)....