Ault v. Washington State Highway Commission

• Decision Date: 11 December 1969
• Docket Number: No. 40964,40964
• Citation: 77 Wn.2d 376,462 P.2d 546
• Court: Washington Supreme Court
• Parties: Harold D. AULT and Anna Marie Ault, husband and wife; Robert E. Gentry and Elizabeth G. Gentry, husband and wife; Walter Roff, a single man; and George A. Johnson, a single man, Appellants, v. WASHINGTON STATE HIGHWAY COMMISSION, Respondent.

Page 376

77 Wn.2d 376

462 P.2d 546

Harold D. AULT and Anna Marie Ault, husband and wife; Robert

E. Gentry and Elizabeth G. Gentry, husband and

wife; Walter Roff, a single man; and

George A. Johnson, a single

man, Appellants, v. WASHINGTON STATE HIGHWAY COMMISSION, Respondent.

No. 40964.

Supreme Court of Washington, En Banc.

Dec. 11, 1969.

Murray E. Taggart, Walla Walla, for appellants.

Slade Gorton, Atty. Gen., Joseph B. Loonam, Asst. Atty. Gen., Olympia, for respondent.

HILL, Judge.

This is an appeal from the judgment of the Superior Court for Walla Walla County affirming the findings and order of the State Highway Commission establishing a highway plan for State Route 12 from the west corporate limits of the city of Walla Walla to the East Airport Interchange in that city.

The plan was established after a public hearing (May 7, 1968) at which extensive testimony was taken supporting and opposing the proposed highway plan submitted by the Highway Department. The appellants opposed this route and proposed an alternative.

June 17, 1968, the State Highway Commission issued its findings and order in accordance with the provisions of RCW 47.52.137. ¹ They adopted the Highway Department's plan, with certain modifications, and set forth the reasons for not adopting the alternative proposed by the appellants.

Appellants then sought and secured a review of the Highway Commission decision and order by the Superior Court for Walla Walla County pursuant to the Administrative Procedure Act (RCW 34.04). That court refused to allow testimony by witnesses for the appellants and limited itself to a review of the hearing record. As indicated in the opening paragraph of this opinion, it affirmed the findings and order of the State Highway Commission.

Appellant challenge the superior court's refusal to allow appellants to supplement the hearing record, and its finding that the State Highway Commission's determination was not in violation of RCW 34.04.130(6). ²

The legislative intent to limit judicial review to the record made before the Highway Commission is shown by the provision which authorizes appeals from the determination of the State Highway Commission, I.e.:

An abutting property owner may petition for review in the superior court of the state of Washington in the county where the limited access facility is to be located. Such review and any appeal therefrom shall be Considered and determined by said court upon the record of the authority in the manner, under the conditions and subject to the limitations and with the effect specified in the Administrative Procedure Act, chapter 34.04 RCW, as amended.

RCW 47.52.195 (Italics ours) The Administrative Procedure Act further emphasizes this intent with the following provision:

The review (of the commission's decision) shall be conducted by the court without a jury and Shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court. The court shall, upon request, hear oral argument and receive written briefs.

RCW 34.04.130(5) (Italics ours) These provisions follow the general rule that the review of the order or decision of an administrative tribunal must be heard on, and limited to, the record before the agency, as prepared and certified by the agency. 73 C.J.S. Public Administrative Bodies and Procedure § 203 (1951).

A similar provision was so construed in State ex rel. Pac. N. W. Bell Tel. Co. v. Washington Util. & Transp. Comm'n, 66 Wash.2d 411, 403 P.2d 73 (1965). In Insurance Co. of N. America v. Kueckelhan, 70 Wash.2d 822, 425 P.2d 669 (1967), we affirmed a superior court's decision to exclude evidence De hors the record which had been offered to demonstrate the arbitrary and capricious nature of a decision by the Insurance Commissioner, even though the statute there allowed 'additional proper evidence.' In that case, Justice Hamilton speaking for the court said, at 835, 425 P.2d at 677:

Under these circumstances we do not conceive the legislature intended that the superior court, in the ordinary case, would go outside the record before it and delve into the merits of the issue debated before the Insurance Commissioner. In our view, the 'additional proper evidence' which the legislature had in mind would necessarily be confined to evidence bearing upon and relevant to alleged irregularities occurring in the course of the Commissioner's proceedings, or, in cases where the Commissioner refused to grant a hearing, to evidence relevant to the necessity for a hearing. Otherwise, the superior court would become a tribunal of original rather than appellate jurisdiction, and the expertise of the Insurance Commissioner in the field of insurance would be squandered.

That was a 5--4 decision, but the dissent in no way disagreed with the quoted statement. Here, as there, appellants were afforded a full opportunity to offer their evidence before the Commission.

The statute here in question does allow additional evidence when alleged irregularities in the procedure before the 'agency' are not shown in the record. However, appellants make no claim that such irregularities existed and are merely asserting that the record is incomplete. ³ The trial court properly excluded the testimony not offered at the hearing before the Highway Commission.

Appellants claim that the decision of the Highway Commission should be reversed (see State ex rel. Gunstone v. Washington State Highway Comm'n, 72 Wash.2d 673, 434 P.2d 734 (1967)) because it violates RCW 34.04.130(6), which reads:

The court may affirm the decision of the agency or remand the case for further...