Dep't of Labor & Indus. of State v. Bd. of Indus. Ins. Appeals of State

• Decision Date: 26 January 2015
• Docket Number: No. 72462–2–I.,72462–2–I.
• Citation: 186 Wash.App. 240,347 P.3d 63
• Court: Washington Court of Appeals
• Parties: DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE of Washington, Respondent, v. BOARD OF INDUSTRIAL INSURANCE APPEALS OF THE STATE of Washington; Mark Jaffe, in his official capacity; Janet Whitney, in her official capacity; Charles McCullough, in his official capacity, Defendants, Tesoro Refining & Marketing Company, LLC, Intervenor/Appellant, United Steel Workers of America, Intervenor.

186 Wash.App. 240

347 P.3d 63

DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE of Washington, Respondent

v. BOARD OF INDUSTRIAL INSURANCE APPEALS OF THE STATE of Washington; Mark Jaffe, in his official capacity; Janet Whitney, in her official capacity; Charles McCullough, in his official capacity, DefendantsTesoro Refining & Marketing Company, LLC, Intervenor/AppellantUnited Steel Workers of America, Intervenor.

No. 72462–2–I.

Court of Appeals of Washington, Division 1.

January 26, 2015.

Michael Barr King, Justin Price Wade, Carney Badley Spellman, PS, Elaine Louise Spencer, Graham & Dunn PC, Seattle, WA, Peter S. Modlin, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Counsel for Appellant.

Paul Michael Crisalli, Washington Attorney General's Office, Brian Lamar Dew, Attorney General of Washington, Seattle Labor & Industries A.g. Office, Attorney at Law, Seattle, WA, Counsel for Respondent.

Kathryn Wyatt, Attorney General's Office, Olympia, WA, Kathleen Phair Barnard, Carson Flora, Schwerin Campbell Barnard Iglitzin & Lav, Seattle, WA, Counsel for Other Parties.

Opinion

VERELLEN, A.C.J.

¶ 1 Tesoro Refining and Marketing Company, LLC (Tesoro) appeals from a superior court order issuing a statutory writ of review and directing the Board of Industrial Insurance Appeals (Board) to allow the Department of Labor and Industries (Department) to present one month of testimony “in colloquy” regarding 29 citations for worker-safety violations vacated by the Industrial Appeals Judge (IAJ) on partial summary judgment. Because the Department's right to appeal the IAJ's orders denying colloquy provides an adequate remedy, the extraordinary remedy of a writ of review is unavailable.

¶ 2 We reverse the superior court's order granting a statutory writ of review and remand to the Board for further proceedings consistent with this opinion.

FACTS

¶ 3 A 2010 explosion at Tesoro's Anacortes oil refinery killed several workers. The Department issued 45 citations to Tesoro after a six-month investigation. In January 2011, Tesoro appealed, and the Board assigned IAJ Mark Jaffe as the hearing officer. Tesoro moved for partial summary judgment in March 2012. IAJ Jaffe granted partial summary judgment for Tesoro, vacating 29 citations. The remaining citations are scheduled for hearings beginning in February 2015.

¶ 4 In March 2014, the Department sought to present one month of testimony in colloquy related to the 29 vacated citations. The Board's regulation authorizing the colloquy procedure provides:

Offers of proof in colloquy. When an objection to a question is sustained an offer of proof in question and answer form shall be permitted unless the question is clearly objectionable on any theory of the case.^[ [[[[^{1 ]}

IAJ Jaffe denied the Department's request to place evidence in colloquy, concluding that the offer of proof regulation did not apply. At the Department's request, a senior IAJ reviewed the order denying colloquy and denied any relief.² The Department then sought a statutory writ of review in Skagit County Superior Court. Tesoro and the United Steel Workers of America intervened. The superior court granted the statutory writ of review and directed the Board to allow the testimony in colloquy.

¶ 5 Tesoro appeals.

ANALYSIS

¶ 6 “A writ of review is an extraordinary remedy granted by statute.”³ We review a superior court's order granting a statutory writ of review de novo.⁴ We review “the challenged administrative decision on the record of the administrative tribunal, not of the superior court operating in its appellate capacity.”⁵

¶ 7 RCW 7.16.040 states the grounds for granting a writ of review:

A writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.

A superior court may grant a statutory writ of review only if (1) there is no appeal or adequate remedy at law and (2) the inferior tribunal, board, or officer acted illegally.⁶ Both requirements must be satisfied.⁷

¶ 8 Tesoro contends that the Department has an adequate remedy by appeal. We agree. If a party has a statutory right to appeal, a statutory writ of review is unavailable.⁸ “ ‘The fact that an appeal will not lie directly from an interlocutory order is not a sufficient basis for a [statutory] writ of review if there is an adequate remedy by appeal from the final judgment.’ ”⁹

¶ 9 Here, the Department has no right to an immediate appeal to the Board. But once the IAJ enters a proposed decision and order, the Department may file a petition for review with the Board.¹⁰ The Board reviews an IAJ's proposed decision and order de novo and can substitute its judgment for that of the IAJ.¹¹ Review extends to interlocutory rulings, including evidentiary matters.¹² Taking testimony in colloquy under WAC 263–12–115(9) is a form of an offer of proof, analogous “to an ‘offer of proof’ under Evidence Rule 103(a) and (b).”¹³ Specifically, the denial of a request to present testimony in colloquy may be raised in a petition for review.¹⁴ Therefore, the Department may challenge the IAJs' orders declining to take testimony in colloquy as part of its statutory appeal.

¶ 10 The Department contends that the issue is likely to evade review because the Board may reach the merits of the partial summary judgment orders without addressing whether the testimony should have been taken in colloquy. But on a petition for review, the Board can determine what its regulation means in this context and fashion an appropriate remedy if the IAJ improperly denied colloquy. The Board has broad authority to order the IAJ to take additional evidence.¹⁵ Even if the remedy takes the form of the Board reversing the IAJ's partial summary judgment orders and directing the IAJ to take additional evidence, that would be an adequate remedy.¹⁶

¶ 11 The Department emphasizes the delay in having to wait for a proposed decision and order before being able to pursue its statutory appeal. While a statutory writ of review may resolve the colloquy issue more expeditiously, that does not render the Department's remedy at law inadequate. “Although the writ [of review] may be convenient, no authority supports its use as a matter of expediency.”¹⁷ The Department's theory—that a writ of review is appropriate because it may not seek review of the interlocutory colloquy orders immediately—“would broaden the scope of the statutory writ so as to be generally available rather than to be an extraordinary remedy as consistently held.”¹⁸ Such a broad use of the statutory writ of review would be contrary to our Supreme Court's mandate that a “writ of review is an extraordinary remedy.”¹⁹

¶ 12 Therefore, because the Department has an adequate remedy by appeal, we conclude that the superior court erred in granting a statutory writ of review.

¶ 13 Tesoro also argues the other prerequisite for a writ of review is not satisfied. But we need not reach the question of whether the Board acted illegally when it denied the Department's request to present evidence in colloquy. It seems inconsistent to require an IAJ to take weeks of testimony in colloquy on citations that have been vacated on partial summary judgment when the fundamental purpose of summary judgment is to avoid an unnecessary trial or hearing.²⁰ Nonetheless, the Board has full discretion to determine whether its colloquy procedure extends to this situation if that issue is raised in a petition for review to the Board.

¶ 14 We also decline to reach Tesoro's alternative arguments regarding venue and procedural requirements for a statutory writ of review.²¹

CONCLUSION

¶ 15 The Department has an adequate remedy by appeal from the IAJ's proposed decision and order. The statutory writ of review should not have issued because the Department failed to establish a statutory prerequisite.

¶ 16 We reverse and remand to the Board for further proceedings consistent with this opinion.

WE CONCUR: LEAH, J., and APPLEWICK, J.

1 WAC 263–12–115(9).

2 “[I]nterlocutory rulings of the industrial appeals judge are not subject to direct review by the board,” but a party that receives “an adverse ruling from an industrial appeals judge [may] request a review by a chief industrial appeals judge or his or her designee.” WAC 263–12–115(6)(a).

3 City of Seattle v. Holifield, 170 Wash.2d 230, 239, 240 P.3d 1162 (2010) ; see City of Seattle v. Williams, 101 Wash.2d 445, 455, 680 P.2d 1051 (1984) (“[S]tatutory writs should be granted sparingly when used as a method of review of interlocutory decisions of courts of limited jurisdiction.”).

4 Nichols v. Seattle Hous. Auth., 171 Wash.App. 897, 902–03, 288 P.3d 403 (2012).

5 Id. at 904, 288 P.3d 403.

6 RCW 7.16.040.

7 Commanda v. Cary, 143 Wash.2d 651, 655, 23 P.3d 1086 (2001) : State v. Epler, 93 Wash.App. 520, 524, 969 P.2d 498 (1999).

8 E.g., Coballes v. Spokane County, 167 Wash.App. 857, 865, 274 P.3d 1102 (2012).

9 Commanda, 143 Wash.2d at 656, 23 P.3d 1086 (quoting Epler, 93 Wash.App. at 525, 969 P.2d 498 ).

10 RCW 51.52.104 ; WAC 263–12–145.

11 Rosales v. Dep't of Labor & Indus., 40 Wash.App. 712, 715, 700 P.2d 748 (1985) ; Stratton v. Dep't of Labor & Indus., 1 Wash.App. 77, 79, 459 P.2d 651 (1969) ; WAC 263–12–145(4)(c) (“After review of the record, the board may set aside the proposed decision and order and remand the appeal to the hearing process, with instructions to the [IAJ] to whom the appeal is assigned on remand, to dispose of the matter in any manner consistent with chapter 263–12 WAC”).

12 RCW 51.52.104 –.106; WAC 263–12–145.

13 In re Herman L. Goddard, No. 95 1468, 1997 WL 316445, at *1 n. 1 (Wash. Bd. of Ind. Ins. Appeals Apr. 24, 1997) ; ER 103(b) (“The court may direct the...