Bock v. State

• Decision Date: 22 November 1978
• Docket Number: No. 45326
• Citation: Bock v. State, 586 P.2d 1173, 91 Wn.2d 94 (Wash. 1978)
• Parties: A. W. BOCK, Appellant, v. STATE of Washington, State Board of Pilotage Commissioners, Respondents.
• Court: Washington Supreme Court

Page 94

91 Wn.2d 94

586 P.2d 1173

A. W. BOCK, Appellant, v. STATE of Washington, State Board of Pilotage Commissioners Respondents.

No. 45326.

Supreme Court of Washington, En Banc.

Nov. 22, 1978.

Moriarty, Long, Mikkelborg & Broz Jacob A. Mikkelborg, Douglas M. Duncan, Seattle, for appellant.

Slade Gorton, Atty. Gen., Walter S. Tabler, Richard L. Kirkby, Olympia, for respondents.

HOROWITZ, Justice.

Appellant A. W. Bock appeals the dismissal of his petitions for writs of mandamus and prohibition to the State Board of Pilotage Commissioners to compel it to issue him a pilotage license. The court below dismissed the petition and quashed writs issued ex parte on the ground appellant's petition failed to state a claim upon which relief may be granted. We affirm the dismissal on the ground the suit is governed by the Administrative Procedure Act and appellant failed to comply with the statute, depriving the court below of jurisdiction. ¹

Captain Bock was one of two applicants for a pilotage license for Puget Sound who took the mandatory examination administered by the State Board of Pilotage Commissioners (the Board) in early June 1975. The Board notified appellant by letter later that month that he had failed the examination. At appellant's request he reviewed his examination answers with the Board. The Board denied his request for access to the entire record of the July examinations, however, which apparently included a request for the answers and grades of the other, successful, candidate. Appellant thereafter filed a suit to compel disclosure of the additional records under public disclosure laws. The parties ultimately settled that suit by agreeing to appoint a neutral arbitration panel to review and evaluate the contents and grading procedure of the exam.

The review panel consisted of three retired senior Coast Guard officers, men of obvious experience and expertise. Their thorough review of the substance, procedure and results of the examination concluded the contents and format of the examination were excellent. The Board examiners tended to "lean over backwards" to give high scores, however, at times awarding scores that exceeded the highest authorized score for the particular question. As a result the Board's grading system was found to be flawed by irregularities and ambiguities. With regard to the performance of the two license applicants taking the examination, the panel concluded Both failed to achieve passing scores, even though one of them (not Captain Bock) had been passed and issued a license. The panel concluded the "quantity of incorrect and incomplete material in their written examinations and the paucity, of correct and complete response given Voluntarily to situation questions contained in the oral examination are sufficient cause to question their competence at the time the examination was given." The report was dated June 24, 1976.

Following the report of the panel, the Board notified appellant Bock through his counsel, by letter dated August 12, 1976, that the Board would take no further action on appellant's case. Appellant describes the Board's position at that time as declining to issue him a pilotage license "based on the review panel's report." On October 4, 1976, 53 days after the date of the Board's letter, appellant filed a petition for alternative writs of mandamus, prohibition and declaratory judgment in the superior court for King County, alleging the Board's action was arbitrary and capricious and violated the privileges and immunities clause of the Constitution. The requested writs were issued ex parte that day.

The Board answered the petition, denying it acted in an arbitrary, capricious or unconstitutional manner, and asserting it could not legally issue appellant a license when he had failed to pass the required examination. The Board also alleged appellant had failed to state a proper claim upon which relief could be granted. The Board then moved to quash the writs and dismiss the petition. The court properly treated the motion as one for judgment on the pleadings. See Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966). The court found the petition failed to state a claim upon which relief could be granted and dismissed the action and quashed the writs on that ground. Captain Bock's appeal from this judgment was certified to this court.

The Board raises for the first time on appeal the defense that the court below had no jurisdiction over this matter, a defense preserved on appeal by RAP 2.5(a)(1). The Board contends the action is governed by the Administrative Procedure Act (the APA), RCW 34.04, and that appellant failed to seek review of the Board's action within 30 days as required by RCW 34.04.130(2). Appellant initially denied the APA applies to actions of the State Board of Pilotage Commissioners, but conceded at oral argument that it does. By the clear terms of that Act, its procedures apply to all agencies not specifically excluded. RCW 34.04.150. Any state board or commission authorized to make rules comes within the Act's definition of agency. RCW 34.04.010(1). The State Board of Pilotage Commissioners, authorized to make rules and regulations by RCW 88.16.030, falls within this definition. Thus, the APA on its face applies to actions of the Board.

Judicial review of agency action under the APA is governed by RCW 34.04.130. That section provides that review of a "final decision" must be instituted by the filing of a petition within 30 days after service of the final decision.

Since the APA applies to Board action, the central issue raised by this appeal is whether the Board's letter to appellant Bock of August 12, 1976, informing him the Board would take no further action on his case, was a "final decision" for which appellant could seek judicial review under RCW 34.04.130. If it was such a decision, appellant's action for extraordinary writs would be barred, for review of agency decisions covered by the APA may be obtained solely under that statute. RCW 34.04.130(1). Furthermore, the statutes governing the extraordinary writs of mandamus and prohibition allow the issuance of those writs only "where there is not a plain, speedy and adequate remedy in the ordinary course of law." RCW 7.16.170 and RCW 7.16.300. Appellant's loss of the remedy provided by the APA through failure to file a timely petition for review does not render that remedy inadequate, or give rise to a right to extraordinary writs. See State ex rel. Whitten v. Spokane, 92 Wash. 667, 669, 159 P. 805 (1916). Therefore, if APA review was available, the extraordinary writs are not.

Appellant contends that, regardless of the APA, courts have jurisdiction to review the alleged arbitrary and capricious acts of licensing agencies upon a petition for an extraordinary writ. He relies principally on Creelman v. Board of Registration of Architects, 73 Wash.2d 298, 438 P.2d 215 (1968), and Standow v. Spokane, 88 Wash.2d 624, 564 P.2d 1145 (1977). We cannot agree that these cases support a conclusion directly contradicting the clear language of the statutes. In Creelman the court below had concluded the action was governed by the APA. Noting the action was not taken under that Act, this court treated it as if it had been properly taken and applied the APA rules of judicial review. The time requirements of RCW 34.04.130 were complied with in that case, and no question of jurisdiction was raised. Standow v. Spokane, supra, Is also distinguishable from the instant case. In Standow...