Lewis County v. W. WA. GMHB

• Decision Date: 23 August 2002
• Docket Number: No. 26861-2-II, No. 26868-0-II.
• Court: Washington Court of Appeals
• Parties: LEWIS COUNTY, Appellant, v. W. WA. GROWTH MGMT. HEARINGS BD., Respondent.

53 P.3d 44

113 Wash.App. 142

LEWIS COUNTY, Appellant, v. W. WA. GROWTH MGMT. HEARINGS BD., Respondent.

Nos. 26861-2-II, 26868-0-II.

Court of Appeals of Washington, Division 2.

August 23, 2002.

Douglas E. Jensen, Chehalis, Alexander Weal Mackie, Olympia, Richard L. Settle, Seattle, Matthew Bryan Edwards, Owens Davies P.s., Olympia, for Appellant.

Alison Moss, Seattle, Shannon Murphy, Centralia, for other parties Port of Chehalis, Lewis County Economic Development Council, Industrial Lands Advisory Task Force, and City of Centralia.

Lewis H. Zieske, Chehalis, Marjorie Ann Smitch, Asst. Atty. Gen., Olympia, for Respondents.

Vince Panesko, Richland, pro se.

MORGAN, J.

The question is whether a superior court has jurisdiction to hear and determine an appeal from a final order of a Growth Management Hearings Board (GMHB) where the appellant, a county, failed to pay the prescribed filing fee within 30-days of the order being appealed from. The trial court answered no, and so do we.

The appellant is Lewis County. The respondents are Eugene Butler, John Mudge, and Vince Panesko. The appellant and respondents contested two cases in front of the Western Washington GMHB. On June 30, 2000, and July 13, 2000, respectively, the Board resolved those cases adversely to Lewis County.

On July 17, 2000, the county attempted to appeal the first case. It did that by tendering a notice of appeal—but not a filing fee— to the clerk of the Lewis County Superior Court. The clerk filed the notice, despite the absence of a filing fee.¹

On July 18, 2000, the county attempted to appeal the second case. It did that by tendering a notice of appeal—but not a filing fee—to the clerk of the Lewis County Superior Court. The clerk filed the notice, despite the absence of a filing fee.

On September 1, 2000, the superior court questioned its jurisdiction in light of the county's not having paid a filing fee within the 30 day period for seeking judicial review. That same day, the county paid the $110 filing fee in the first case. On November 3, 2000, the county paid the $110 filing fee in the second case. The cases have now been consolidated. On December 8, 2000, after briefing and argument, the court orally held that it lacked jurisdiction because the county had not paid filing fees within 30 days of the orders it was appealing from. Later, the court denied a motion for reconsideration and entered written orders of dismissal. Lewis County then commenced this appeal.

We address several questions. (1) Was the county required to pay a filing fee? (2) Assuming that the county was required to pay a filing fee, was it required to pay such fee within 30 days of the order being appealed? (3) Assuming that the county was required to pay a filing fee within 30 days of the order being appealed, did its failure to do so result in a jurisdictional defect? (4) Assuming that the county's failure resulted in a jurisdictional defect, should this court now waive that defect?

I.

Whether a county must pay a filing fee turns on several statutes. RCW 36.70A.300(5) provides:

Any party aggrieved by a final decision of the hearings board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final order of the board.

RCW 34.05.514(1) provides:

... [P]roceedings for review under this chapter shall be instituted by paying the fee required under RCW 36.18.020[²] and filing a petition in the superior court,[³] at the petitioner's option, for (a) Thurston county, (b) the county of the petitioner's residence or principal place of business, or (c) in any county where the property owned by the petitioner and affected by the contested decision is located.

RCW 36.01.050(1) provides:

All actions against any county may be commenced in the superior court of such county, or in the superior court of either of the two nearest judicial districts. All actions by any county shall be commenced in the superior court of the county in which the defendant resides, or in either of the two judicial districts nearest to the county bringing the action.

As can be seen, each of these statutes deals with when, how, or where a party can seek judicial review of a decision by a GMHB. RCW 36.70A.300(5) states that a party may appeal within 30 days. It also states that a party may appeal "as provided in RCW 34.05.514 or [RCW] 36.01.050[.]" RCW 34.05.514(1) states that an appeal is instituted by filing a petition and paying a filing fee in any of three venues. RCW 36.01.050(1) states that when a county appeals, it may do so in any of three venues. Depending on the facts, the venues permitted by RCW 36.01.050(1) may be the same as or different from the venues permitted by RCW 34.05.514(1).

The parties dispute what the legislature intended⁴ when, in RCW 36.70A.300(5), it said that a party may appeal "as provided in RCW 34.05.514 or [RCW] 36.01.050." Lewis County argues that the legislature intended compliance with RCW 36.01.050 to be a complete alternative to compliance with RCW 34.05.514(1); thus, a county that files in one of the venues set forth in RCW 36.01.050(1) need not comply with RCW 34.05.514(1), and Lewis County did not have to pay the filing fee described in RCW 34.05.514(1) and RCW 36.18.020(2)(c). The respondents argue that the legislature intended compliance with RCW 36.01.050(1) to be a partial alternative to compliance with RCW 34.05.514(1). They reason that RCW 34.05.514(1) requires a petition, a filing fee, and filing within certain venues; that compliance with RCW 36.01.050(1)'s venue provisions obviates the need to comply with RCW 34.05.514(1)'s venue provisions, but not the need to comply with its petition and fee provisions; and thus that Lewis County had to comply with RCW 34.05.514(1)'s petition and fee requirements regardless of the venue it selected.

For several reasons, we agree with respondents. If compliance with RCW 36.01.050 were a complete alternative to compliance with RCW 34.05.514(1), an appellant who files in a venue permitted by RCW 36.01.050(1) would not have to file a "petition" within the meaning of the Administrative Procedures Act (APA) (which includes, for example, RCW 34.05.546, quoted in an earlier footnote). Instead, he or she would only have to file an "action" within the meaning of RCW 36.01.050(1). But in RCW 34.05.510 the legislature expressly declared its intent that the APA, RCW 34.05, be "the exclusive means of judicial review of agency action," subject to exceptions not pertinent here. Because the legislature clearly intended GMHB appeals to be processed under the APA, we do not think that the legislature intended compliance with RCW 36.01.050 to be a complete alternative to compliance with RCW 34.05.514(1).

Additionally, if compliance with RCW 36.01.050 were a complete alternative to compliance with RCW 34.05.514(1), there would be a crazy-quilt of petition and fee requirements. The appellant who chose a venue permitted by RCW 34.05.514 would have to file a petition for judicial review under RCW 34.05.546, and pay a filing fee under RCW 36.18.020(2)(c). The appellant who chose a venue permitted by RCW 36.01.050 would not have to file a petition for judicial review under RCW 34.05.546 or pay a filing fee under RCW 36.18.020(2)(c); rather, he or she would just have to file an "action," and no fee would be required. Court clerks would have to analyze venue in order to know what fee to collect. Such a scheme is absurd and cannot be what the legislature intended.⁵

Finally, if compliance with RCW 36.01.050(1) is only a partial alternative to compliance with RCW 34.05.514(1)—in other words, if compliance with RCW 36.01.050(1) substitutes for compliance with the venue portions of RCW 34.05.514(1), but not for compliance with the petition and fee requirements of RCW 34.05.514(1)—an appellant will be able to appeal "as provided in RCW 34.05.514 or [RCW] 36.01.050"⁶ in the sense that he or she can bring the appeal in any venue permitted by either statute.⁷ In all cases, however, he or she will be required to prepare and file a petition for judicial review under RCW 34.05.546, and to pay a filing fee under RCW 36.18.020(2)(c). This is the only scheme that makes any sense, and in our view the one that the legislature necessarily intended. For all these reasons, we conclude (1) that Lewis County was entitled to bring its appeal "as provided in RCW 34.05.514(1) or [RCW] 36.01.050" in the sense that it could lay venue under either RCW 34.05.514(1) or RCW 36.01.050(1); but that regardless of the venue it chose, it was required to institute its appeal by filing a petition for judicial review and paying a filing fee under RCW 34.05.514(1) and RCW 36.18.020(2)(c).

II.

The next question is whether a county can institute a GMHB appeal without paying a filing fee within 30 days of the order being appealed. RCW 36.70A.300(5) and RCW 34.05.514(1) describe the steps that must be taken to commence or institute⁸ an appeal from a GMHB to superior court. RCW 36.70A.300(5) provides that if a party desires to appeal, he or she must do so "within thirty days of the final order of the board." RCW 34.05.514(1) provides that "proceedings for [judicial] review"—i.e., an appeal—"shall be instituted by paying the fee required under RCW 36.18.020 and filing a petition in the superior court[.]" Thus, an appellant fails to commence or institute a GMHB appeal unless, within 30 days of the GMHB's final order, it files a petition and pays the filing fee.

Lewis County argues that when the appellant is the state or a county, RCW 36.18.060 overrides RCW 36.70A.300(5) and RCW 34.05.514(1) with respect to payment of a filing fee. RCW 36.18.060 provides that most county officers, including the clerk, "shall not, in any case, except for the state or county, perform any official services unless the fees prescribed therefor are paid in advance[.]"

Statutes should be harmonized, when possible,⁹ so that each is given force...