Diehl v. WESTERN WASH. GROWTH MANAGEMENT HEARINGS BOARD
| Decision Date | 16 December 2004 |
| Docket Number | No. 74768-7.,74768-7. |
| Citation | 103 P.3d 193,153 Wash.2d 207 |
| Court | Washington Supreme Court |
| Parties | John E. DIEHL, Petitioner, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, et al., Respondents. |
John E. Diehl, Shelton, for Petitioner.
Darren John Nienaber, Mason County Pros. Attorney, Shelton, Martha Patricia Lantz, Office of Atty. Gen. Lic. & Admin. Law, Olympia, for Respondents.
Michael J. Robinson-Dorn, William Hamilton Rodgers, for Amicus Curiae Administrative and Environmental Law Professors and William R. Andersen.
William Berggren Collins, Olympia, for Amicus Curiae Attorney General.
John Diehl, appearing pro se, seeks review of a published Court of Appeals decision affirming the dismissal of his petition for judicial review by Mason County Superior Court. Diehl v. W. Wash. Growth Mgmt. Hr'gs Bd., 118 Wash.App. 212, 75 P.3d 975 (2003). Diehl challenged the Growth Management Hearing Board's adoption of a comprehensive plan. The trial court dismissed Diehl's petition on the grounds that Diehl failed to comply with Civil Rule (CR) 4 when he served his petition for judicial review. Finding that the Administrative Procedure Act (APA) governs service and CR 4 does not apply in this case, we reverse the Court of Appeals and remand to the trial court for a hearing on the merits.
On April 30, 2001, Diehl filed his petition for review of a Western Washington Growth Management Hearings Board decision, Dawes et al. v. Mason County, No. 96-2-0023c, Western Washington Growth Management Hearings Board, pursuant to ch. RCW 34.05 and ch. RCW 36.70A.300(5). Paragraph 2 of the petition included the names and addresses of the Western Washington Growth Management Hearings Board and other parties to the agency proceedings, but did not include the attorney general's office. The last page of the petition included the following:
Following a July 11, 2001 status conference, on July 23, 2001, a Mason County Superior Court commissioner issued an order consolidating Diehl's petition with that of Mason County and the South 101 Corridor Group, and setting briefing schedule and argument. The order was mailed to counsel for all parties, including the assistant attorney general representing the hearings board. Mason County filed its response to Diehl's petition on October 8, 2001. The reply brief addressed the merits of the petition but did not raise any procedural defect.
At the hearing on the merits on the petition for review on April 29, 2002, Mason County made a prehearing oral motion to dismiss the petition for review on the grounds that the certificate of service was insufficient because it did not name the persons or agencies that had been served with the petition for review. The court gave Diehl until May 6, 2002 to file a written response to the oral motion, which he did, in the form of a letter to the trial court judge, with copies to the parties, including the Mason County Prosecutor and the assistant attorney general. The letter states, in part:
The county filed a response to Diehl's letter, arguing that Diehl had failed to comply with either CR 4 or 5 and that his letter was not a certified statement, and therefore was insufficient to provide assurances of service. The county also raised the issue as to who performed the service of process, arguing that Diehl's service of his own petition violated CR 4(c).
On May 10, 2002, the trial court issued a memorandum opinion and order holding that RCW 34.05.542 sets out the time period requirements for filing and service of a petition for review, but that CR 4 is also applicable as to the manner of service. The court further held that Diehl's declaration of service did not comply with CR 4(g), that Diehl violated CR 4(c) by serving original process himself, and that failure to comply with the applicable rules for original service of process precluded the court from having jurisdiction to review the hearings board's final order. The trial court ordered that the petition for review would be dismissed on May 15, 2002 for failure of service, unless Diehl filed a declaration of service in the proper form pursuant to CR 4(g).
Diehl filed a motion for reconsideration on May 13, 2002, asserting that CR 4 is inapplicable because service of a petition for review is service of appellate process, not service of original process, but if CR 4 applies, the county waived its defense of insufficiency of process by failing to plead it before it filed its responsive pleadings. Mason County responded, asserting that the civil rules applied to special proceedings under CR 1 and CR 81, where not inconsistent with the APA; that the APA did not negate the service requirements of the civil rules; and that Diehl declined the opportunity given him by the court to supplement the record with appropriate proof of service. The trial court subsequently denied Diehl's motion to reconsider and granted the county's motion to dismiss Diehl's petition, pursuant to its May 10 memorandum opinion.
Following Diehl's timely appeal, Judge Seinfeld of Division Two of the Court of Appeals, affirmed the superior court, holding that the civil rules applied to Diehl's petition for review because service of process is an ancillary matter under RCW 34.05.510(2) and CR 4 is not inconsistent with the APA. The court further held that Diehl's certificate of service and subsequent letter to the trial court failed to comply with either the civil rules, the rules of appellate procedure, or with the APA because Diehl's certificate of service was not in affidavit form and did not state where he served the parties, and that Diehl failed to serve the county auditor pursuant to RCW 4.28.080(1), or the office of the attorney general. The court also held that the county did not waive its defense of improper service under CR 12(h) because subject matter jurisdiction may be raised at any time and substantial compliance with the service requirements of the APA is not sufficient to invoke the appellate or subject matter jurisdiction of the superior court. The court held that it could not determine whether substantial compliance should apply where the parties received actual service, but the service did not meet all procedural requirements. Diehl, 118 Wash.App. 212, 75 P.3d 975. Because we hold that Diehl complied with the APA service requirements, we do not reach the issues of waiver or substantial compliance.
Construction of a statute is a question of law which we review de novo. City of Pasco v. Public Employment Relations Comm'n, 119 Wash.2d 504, 507, 833 P.2d 381 (1992).
1. Where a petition for review of an administrative decision is filed in superior court, does RCW 34.05.542 or CR 4 govern service requirements?
The APA establishes the exclusive means of judicial review for agency action, with the exception of litigation in which the sole issue is a claim for money damages or compensation, or when the agency whose action is at issue does not have statutory authority to determine the claim. RCW 34.05.510(1).
RCW 34.05.542 governs the time for filing a petition for review in superior court. In addition to providing the time requirements, RCW 34.05.542(2) requires that a petition for judicial review shall be "served on the agency, the office of the attorney general, and all parties of record within thirty days after service of the final order". "Service of the petition on the agency shall be by delivery of a copy of the petition to the office of the director, or other chief administrative officer or chairperson of the agency, at the principal office of the agency". RCW 34.05.542(4). Service of a copy by mail upon the other parties of record and the office of the attorney general shall be deemed complete upon deposit in the United States mail, as evidenced by postmark. Id. The APA defines service as the "posting in the United States mail, properly addressed, postage prepaid, or personal service". RCW 34.05.010(19). Service by mail is complete upon deposit in the United States mail. Id. Agencies may, by rule, authorize service by electronic telefacsimile transmission, where copies are mailed simultaneously, or by commercial parcel delivery company. Id.
Both RCW 34.05.542 and 34.05.010 are silent as to who may serve. The statutes read together clearly allow service either by mail or personal service and do not prohibit service by a party. The fact that a postmark is acceptable under the statute as evidence of completion of service indicates that receipt of the petition by the agency is proof of service and, therefore, a certificate of service is not required. This interpretation of the statute governing proof of service for review of hearings board decisions is consistent with the proof of service requirements for proceedings before the hearings board itself, which allows,...
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