Franklin County Sheriff's Office v. Sellers

Decision Date13 May 1982
Docket NumberNo. 47613-6,47613-6
Citation646 P.2d 113,97 Wn.2d 317
CourtWashington Supreme Court
Parties, 31 Empl. Prac. Dec. P 33,570 FRANKLIN COUNTY SHERIFF'S OFFICE, Petitioner, v. Betty P. SELLERS, Complainant-Defendant, and Washington State Human Rights Commission, Respondent/Cross-Petitioner.

C. J. Rabideau, Franklin County Pros. Atty., George E. Heidlebaugh, Deputy County Pros. Atty., Pasco, for petitioner.

Kenneth O. Eikenberry, Atty. Gen., Morton M. Tytler, Senior Asst. Atty. Gen., Olympia, for respondent/cross petitioner.

Elizabeth A. Edmonds, Nancy Preg, Seattle, for amicus curiae, Washington Women Laywers, and Washington Chapter of Nat. Organiz. of Women.

DIMMICK, Justice.

This is a review of a contested case conducted by a hearing tribunal of the Washington State Human Rights Commission (Commission). The tribunal awarded damages and other equitable relief to Betty Sellers on a sex discrimination claim brought against the Franklin County Sheriff's Office (County).

The trial court affirmed the findings, conclusions, and damages awarded by the tribunal. The Court of Appeals reversed in a 2-to-1 decision. This court granted both Sellers' and Franklin County's petitions for review. We reverse the Court of Appeals and uphold the trial court's affirmance The facts, as determined from the record before us, are as follows:

of the hearing tribunal.

In 1972, Franklin County formalized a work release program for county jail inmates. The draft called for a staff of a "Program Director and two counselors, a male and a female." County officials testified that in promulgating the regulations no thought was given to the fact that designating one counselor of each sex might be illegal employment discrimination.

In June 1974, Betty Sellers called the Franklin County Sheriff's Office to ask about the position for second counselor which she learned was open through the unemployment office. She was told by Shirley Billingsley, the woman who had been in the other counseling position for 4 years, that they would only consider a male counselor for the open position. Sellers filed a complaint with the Human Rights Commission.

The tribunal found that since Billingsley had for 4 years performed excellently as counselor in the program, the County had failed in its burden to prove that women as a class cannot perform the functions of a counselor in the work release program. The tribunal also found that the employment of a male counselor is not necessary for the successful implementation of the County's work release program, but is merely a preference or convenience.

The trial court's review was conducted on the record of the hearing tribunal and the trial court did not itself take evidence or try any issues of fact. The court upheld the tribunal on the basis that there was no error of law, the findings were not clearly erroneous and the formation and actions of the hearing tribunal were not in excess of constitutional or statutory authority. (See RCW 34.04.130(6).)

The Court of Appeals viewed the issues resolved by the tribunal as mixed questions of law and fact and determined that it should exercise its "inherent and statutory authority to make a de novo review of the record independent of the Commission's decision." Franklin County Sheriff's Office v.

Sellers, 27 Wash.App. 797, 799, 621 P.2d 751 (1980). The majority then proceeded to reweigh the evidence, making findings of fact that differed from the findings of the tribunal. The dissent found still different facts.

I

This gives rise to the first issue in this case. What is the scope of review of administrative action in contested cases?

The review procedures set forth in the substantive act, Law Against Discrimination, RCW 49.60 remain substantially the same as when first enacted in 1949. Laws of 1949, ch. 183, § 9. The procedures provided by that act for the most part merely clarify the scope of review:

The findings of the administrative law judge as to the facts, if supported by substantial and competent evidence shall be conclusive. The court, upon its own motion or upon motion of either of the parties to the proceeding, may permit each party to introduce such additional evidence as the court may believe necessary to a proper decision of the cause.

The jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to a review by the supreme court or the court of appeals, on appeal, by either party, irrespective of the nature of the decree or judgment. Such appeal shall be taken and prosecuted in the same manner and form and with the same effect as is provided in other cases of appeal to the supreme court or the court of appeals, and the record so certified shall contain all that was before the lower court.

RCW 49.60.260(2), (3).

Those procedures, however, are not controlling. The administrative procedure act (APA), RCW 34.04.130(1), provides that a person aggrieved by a final decision in a contested case is "entitled to judicial review thereof only under (the APA) and such person may not use any other procedure ... even though another procedure is provided elsewhere by a special statute or a statute of general application." This provision was adopted subsequent to the review procedures of RCW 49.60. Accordingly, it is clear Our review, like that of the superior court and the Court of Appeals, is under RCW 34.04.130(6) which provides:

that the review procedures of the APA must be adhered to in the instant case. Cf. Olson v. University of Wash., 89 Wash.2d 558, 573 P.2d 1308 (1978) (wherein this court held that the review procedures of a special statute adopted after the APA governed our review).

The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or

(f) arbitrary or capricious.

Difficulties as to application and scope of the APA standards are apparent in the line of cases interpreting the above provisions. 1 But it is clear under the APA that review, whether conducted by the superior court, Court of Appeals, or Supreme Court, is limited to the record: "review shall be conducted by the court ... and shall be confined to the record". RCW 34.04.130(5), with exceptions as set out. We have previously ruled that our review of

administrative decisions is on the record of the administrative tribunal itself, not of the superior court. Department of Ecology v. Ballard Elks Lodge 827, 84 Wash.2d 551, 527 P.2d 1121 (1974); Farm Supply Distrib., Inc. v. State Utils. & Transp. Comm'n, 83 Wash.2d 446, 518 P.2d 1237 (1974).

II ISSUES OF FACT UNDER THE APA

Judicial review is not selective, but must be conducted on the entire record, not by isolating evidence. Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wash.2d 267, 552 P.2d 674 (1976). The duty of the reviewing court to search the entire record for evidence both supportive of and contrary to the agency's findings is found in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). RCW 34.04.130(6)(e) addresses the clearly erroneous standard of review for factual determinations "in view of the entire record".

As previously discussed, the APA's clearly erroneous standard of review for factual determinations governs. The APA amendment in 1967 did away with a substantial evidence test replacing it with the clearly erroneous test. This change clearly indicated that the legislature intended to allow broader, more intensive review of an agency's factual determinations. Ancheta v. Daly, 77 Wash.2d 255, 259, 461 P.2d 531 (1969). See also Abrahams, Scope of Review of Administrative Action in Washington: A Proposal, 14 Gonz.L.Rev. 75, 80 (1978). The present test allows for greater judicial scrutiny of agency fact finding, as the reviewing court can declare a finding to be clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Ancheta, at 259-60, 461 P.2d 531.

In Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959), we ended our former practice of trying de novo questions of fact already determined by trial Although the Court of Appeals correctly points out that there was credible evidence contrary to the tribunal's findings, the findings are not "clearly erroneous" and should not have been tried de novo as was done by that court. See Stempel v. Department of Water Resources, 82 Wash.2d 109, 508 P.2d 166 (1973).

courts. Cf. Smith v. Skagit County, 75 Wash.2d 715, 453 P.2d 832 (1969) (wherein this court reviewed the record de novo because the trial court had not heard testimony requiring it to assess the credibility of [646 P.2d 117] witnesses, to weigh evidence, or reconcile conflicting evidence). Substitution of our judgment for that of the administrative agency in factual matters is not authorized by the APA, and by reasoning of Hesperian Orchards, we will not try facts de novo on review.

III ISSUES OF LAW UNDER THE APA

Next, the issues of law are reviewed under the APA, RCW 34.04.130(6)(d). The Bona Fide Occupational Qualification (BFOQ) definition as determined by the tribunal is a question of law, to which we apply the error of law standard. Since issues of law are the responsibility of the judicial branch to resolve, the error of law standard allows the...

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