State ex rel. Hood v. Washington State Personnel Bd., 42504

• Decision Date: 21 June 1973
• Docket Number: No. 42504,42504
• Citation: 82 Wn.2d 396,511 P.2d 52
• Parties: The STATE of Washington, ex rel. on the Relation of Jack C. HOOD, et al., Petitioners, v. The WASHINGTON STATE PERSONNEL BOARD, Respondent, Jack A. Thompson, Intervenor.
• Court: Washington Supreme Court

Page 396

82 Wn.2d 396

511 P.2d 52

The STATE of Washington, ex rel. on the Relation of Jack C HOOD, et al., Petitioners, v. The WASHINGTON STATE PERSONNEL BOARD, Respondent Jack A. Thompson, Intervenor.

No. 42504.

Supreme Court of Washington, En Banc.

June 21, 1973.

Rehearing Denied Aug. 23, 1973.

Slade Gorton, Atty. Gen., Arthur F. Mickey, Asst. Atty. Gen., Olympia, for petitioners.

Slade Gorton, Atty. Gen., Kenneth W. Elfbrandt, Asst. Atty. Gen., Washington State Personnel Board, Olympia, for respondent.

Herbert H. Fuller, Olympia, for intervenor.

STAFFORD, Associate Justice.

This case involves judicial power to review an order of the Washington State Personnel Board reversing the Washington State Liquor Control Board's dismissal of an employee.

Jack A. Thompson, who had been employed by the Liquor Control Board since June of 1967, was dismissed in April of 1970. Mr. Thompson promptly appealed his dismissal to the Personnel Board. After a hearing on the merits, the Personnel Board ordered him reinstated as an employee of the Liquor Control Board.

The Liquor Control Board sought review of the Personnel Board's action by filing a petition for writ of certiorari in the Superior Court for Thurston County. The Personnel Board moved for dismissal of the writ asserting that the trial court lacked jurisdiction over the subject matter and that the Liquor Control Board lacked standing to obtain judicial review of orders issued by the Personnel Board. The trial court denied the motion and proceeded to a hearing on the merits. Mr. Thompson was permitted to intervene.

After the court's hearing, the Personnel Board's order of reinstatement was ordered affirmed and the Liquor Control Board appealed to the Court of Appeals. Thereafter, the Court of Appeals affirmed the order of reinstatement, but for different reasons than the trial court. First, the Court of Appeals held the Superior Court lacked jurisdiction to issue the writ of certiorari. Second, it considered the merits of the case and concluded that the Personnel Board had not proceeded in an illegal or arbitrary and capricious manner and affirmed the trial court's order insofar as it affirmed the Personnel Board's order of reinstatement. State ex rel. Hood v. Washington State Personnel Bd., 6 Wash.App. 872, 497 P.2d 187 (1972).

The Liquor Control Board has brought the matter before us on a petition for review. For reasons stated hereafter, we do not reach the merits of the case and affirm only the result of the Court of Appeals opinion.

The Liquor Control Board was created by Laws of 1933, 1st Ex.Sess., ch. 62, § 63, p. 201, and the Personnel Board by Initiative 207, adopted by the vote of the people November 8, 1960, and codified in Laws of 1961, ch. 1, § 11, p. 13. Inasmuch as both boards are state agencies the source of their rights, powers, duties, privileges and immunities is statutory. Thus, it is for the legislature to decide whether one state agency may appeal or obtain judicial review of an adverse decision of another state agency. This, however, is always subject to the inherent constitutional power of the judiciary to review illegal or manifestly arbitrary and capricious actions violative of a fundamental rights. State ex rel. DuPont-Fort Lewis Sch. Dist. 7 v. Bruno, 62 Wash.2d 790, 384 P.2d 608 (1963); See State ex rel. Cosmopolis Consol. Sch. Dist. 99 v. Bruno, 59 Wash.2d 366, 367 P.2d 995 (1962).

We note, preliminarily, that the Liquor Control Board did not attempt an appeal to the Superior Court. The right of appeal from orders of the Personnel Board is limited expressly to State employees. RCW 41.06.200 reads in part as follows:

(1) Within thirty days after the recording of the order and the mailing thereof, the Employee may appeal to the superior court of Thurston county . . .

(Italics ours.)

By the same token, the Liquor Control Board's right of review by certiorari has its jurisdictional basis in a legislative enactment. Such right is limited as provided in RCW 7.16.040:

A writ of review shall be granted by any court, except a police or justice 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.

(Italics ours.)

As just indicated, a writ of certiorari lies only to review actions of boards exercising Judicial functions. Thus, the first question is whether the functions exercised by the Personnel Board are 'judicial' within the meaning of RCW 7.16.040.

The Personnel Board has broad rule-making power. It has the duty of entertaining appeals by employees who have been dismissed for cause by their employing agency, and of conducting hearings thereon. After reviewing the evidence, the Personnel Board is required to prepare findings of fact and conclusions of law and issue orders based thereon. RCW 41.06.170, .180, .190. On disputed issues of fact the board's findings are entitled to a prima facie presumption of correctness. Gogerty v. Department of Institutions, 71 Wash.2d 1, 426 P.2d 476 (1967).

At first appearance one might conclude that the foregoing functions are judicial in nature. On more careful scrutiny, however, we conclude that the Personnel Board's function in hearing and deciding appeals of employees, who have been dismissed for cause by their employing agencies, is a nonjudicial function.

We recognize various tests have been employed to determine whether administrative acts are judicial in nature. See Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 495 P.2d 657 (1972) and Okanogan County Sch. Dist. 400 v. Andrews, 58 Wash.2d 371, 363 P.2d 129 (1961). In the case at hand, however, the most significant test for the distinction between judicial and nonjudicial functions is whether the function performed by the agency is one which the judiciary has historically performed and which the courts could have performed prior to creation of the agency. Floyd v. Department of L. & I., 44 Wash.2d 560, 269 P.2d 563 (1954).

The nature of the Personnel Board's function is derived, historically, from the purpose for which it was created. RCW 41.06.010 provides:

The general purpose of this chapter is to establish for the state a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, recruitment, retention, classification and pay plan, removal, discipline and welfare of its civil employees, and other incidents of state employment. All appointments and promotions to positions, and retention therein, in the state service, shall be made on the basis of policies hereinafter specified.

Prior to creation of the Personnel Board, state employees had no express employment rights which were within the power of the courts to protect. Personnel administration was left exclusively to the discretion of management. Thus, there were no functions which the courts had or even could have performed prior to the creation of the Personnel Board. Furthermore, the act which created the agency also created the rights which were to be protected by the agency.

We conclude, as did the Court of Appeals, that the function of the Personnel Board, in hearing and determining appeals from employees who have been dismissed for cause by their employing agency is nonjudicial in nature. That being the case, the Superior...