Superior Asphalt and Concrete Co. Inc. v. Dept. of Labor and Industries

• Decision Date: 06 May 2004
• Docket Number: No. 22166-1-III.,22166-1-III.
• Court: Washington Court of Appeals
• Parties: SUPERIOR ASPHALT AND CONCRETE CO. INC.; and Western States Paving Co. Inc., Appellants, v. The WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES; Gary Moore, The Director of the Washington Department of Labor and Industries; and Michael Silverstein, The Assistant Director of the WISHA Services Division, Respondents.

89 P.3d 316

121 Wash.App. 601

SUPERIOR ASPHALT AND CONCRETE CO. INC.; and Western States Paving Co. Inc., Appellants, v. The WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES; Gary Moore, The Director of the Washington Department of Labor and Industries; and Michael Silverstein, The Assistant Director of the WISHA Services Division, Respondents.

No. 22166-1-III.

Court of Appeals of Washington, Division 3, Panel Seven.

May 6, 2004.

Gary Edward Lofland, Attorney at Law, Yakima, WA, for Appellants.

Bourtai Hargrove, Attorney General's Office, Olympia, WA, for Respondents.

SCHULTHEIS, J.

Superior Asphalt and Concrete Co. Inc. and its subsidiary, Western States Paving Co. Inc.,¹ filed a declaratory judgment action against the Department of Labor and Industries in Yakima County Superior Court, challenging the constitutionality of a safety regulation, WAC 296-155-305(2), which governs flagger safety on road and highway worksites. In this appeal, Superior contends the safety regulation is unconstitutionally vague since people of common intelligence cannot understand what is required or prohibited. It also complains the Department has unfettered discretion in enforcing the safety regulation. Under the specific facts of this case, we must follow precedential case law and affirm the trial court's decision.

FACTS

The Department is charged with the enforcement of all Washington Industrial Safety and Health Act (WISHA) rules and regulations, which it does through inspections, issuing citations, and imposing monetary penalties. RCW 49.17.070, .120, .180. Employers are statutorily mandated to comply with WISHA promulgated rules and regulations. RCW 49.17.060(2). In 2000, in response to the increase of flagger fatalities in this state, the legislature directed the Department to adopt permanent rules revising any safety standards governing flaggers. RCW 49.17.350. As a result, WAC 296-155-305(2)² was amended.

Superior Asphalt and Western States are contractors that perform road and highway construction all over the state of Washington. While working on a road project in Clark County, Washington, Western States was cited for violating the flagger safety regulation. It initially informally appealed the citation, claiming it was unjust under the specific circumstances. The Department denied the appeal and issued a Corrective Notice of Redetermination (CNR). Western States appealed the CNR and a more formal hearing was held before the Board of Industrial Insurance Appeals pursuant to RCW 49.17.140. At its conclusion, the Board determined the Department could not prove a violation had occurred and vacated Western States' citation. However, it properly refused to discuss Western States' contention that WAC 296-155-305(2) was unconstitutionally vague.³ The Board also imposed discovery sanctions and awarded attorney fees to Western States. The Department's petition for review of the Board's decision regarding sanctions and fees was denied.

Superior filed a complaint seeking a declaratory judgment and injunctive relief against the Department, claiming WAC 296-155-305(2) was unconstitutionally vague. The action was brought on the basis that although road contractors were statutorily required to abide by the recently promulgated flagger safety regulation, there were no clear guidelines as to what employer activities were required or prohibited. Superior also argued the ambiguous regulation would lead to arbitrary enforcement by Department inspectors since no training program, manual, or guidebook had been developed to assist the contractors or the inspectors during the enforcement process. In filing its motion to dismiss the lawsuit, not only did the Department deny the regulation was unconstitutionally vague, it also claimed Western States had failed to exhaust its administrative remedies prior to filing the lawsuit and thus lacked standing to challenge the regulation. It also argued Superior Asphalt lacked standing since it had never been cited for violating the safety regulation at issue.

The trial court granted summary judgment dismissal in favor of the Department, finding the challenge to the safety regulation was not yet ripe for review since Superior Asphalt had not been cited by the Department for violation of WAC 296-155-305 and Western States had not requested that the reviewing court consider the facts surrounding the issuance of its citation, which had already been vacated by the Board. Superior filed a motion for reconsideration and a motion to amend the pleadings to conform to the evidence presented. The motions were denied. This timely appeal resulted.

ANALYSIS

The Uniform Declaratory Judgments Act allows a party to ask the court to determine the constitutionality of a statute. Chapter 7.24 RCW. However, unless an issue is of broad overriding public import, the parties must present evidence of a justiciable controversy before the jurisdiction of a particular court may be invoked. To-Ro Trade Shows v. Collins, 144 Wash.2d 403, 411, 27 P.3d 1149 (2001). In any action under the Uniform Declaratory Judgments Act, the standing requirement tends to overlap the justiciable controversy requirement. Id. at 411 n. 5, 27 P.3d 1149.

Before we may reach the merits of Superior's appeal, we must first determine whether it has standing to challenge the constitutionality of WAC 296-155-305(2). Before the jurisdiction of a court may be invoked under the Uniform Declaratory Judgments Act, a justiciable controversy must exist. Diversified Indus. Dev. Corp. v. Ripley, 82 Wash.2d 811, 814-15, 514 P.2d 137 (1973). A justiciable controversy is an actual, present, and existing dispute, or the mature seeds of one, which is distinguishable from a possible, dormant, hypothetical, speculative, or moot disagreement. To-Ro, 144 Wash.2d at 411, 27 P.3d 1149. To be justiciable, a dispute must be between parties that have genuine and opposing interests, which are direct and substantial and not merely potential, theoretical, abstract, or academic; and a judicial determination of the dispute must be final and conclusive. Id. "Inherent in these four requirements are the traditional limiting doctrines of standing, mootness, and ripeness, as well as the federal case-or-controversy requirement." Id. The purpose of these requirements is to ensure the court will render a final decision on an actual dispute between opposing parties with a genuine stake in the court's decision. Id. Unless all these elements are present, the reviewing court steps into the prohibited area of advisory opinions. Diversified Indus., 82 Wash.2d at 815, 514 P.2d 137.

It is immediately apparent that there are two justiciability elements that are problematic to Superior's assignment of error on appeal. First, Superior is unable to prove that an actual, present, or existing dispute (or the mature seeds of one) exists as a result of the alleged unconstitutionality of the regulation. Second, it is unable to prove that the opposing interests it has with the Department regarding the safety regulation are...