Washington State Bd. Against Discrimination v. Board of Directors, Olympia School Dist. No. 1

• Decision Date: 31 March 1966
• Docket Number: No. 37668,37668
• Citation: 68 Wn.2d 262,412 P.2d 769
• Court: Washington Supreme Court
• Parties: , 9 Fair Empl.Prac.Cas. (BNA) 1240, 1 Empl. Prac. Dec. P 9735 WASHINGTON STATE BOARD AGAINST DISCRIMINATION, Appellant, v. BOARD OF DIRECTORS, OLYMPIA SCHOOL DISTRICT NO. 1, Dr. Rolland Upton, Superintendent, et al., Respondents.

Page 262

68 Wn.2d 262

412 P.2d 769, 9 Fair Empl.Prac.Cas. (BNA) 1240,

1 Empl. Prac. Dec. P 9735

WASHINGTON STATE BOARD AGAINST DISCRIMINATION, Appellant, v. BOARD OF DIRECTORS, OLYMPIA SCHOOL DISTRICT NO. 1, Dr Rolland Upton, Superintendent, et al., Respondents.

No. 37668.

Supreme Court of Washington, En Banc.

March 31, 1966.

John J. O'Connell Atty. Gen., Lloyd W. Peterson, Morton M. Tytler, Asst. Attys. Gen., Olympia, for appellant.

Harold Koch, Pros. Atty., Olympia, Jerome L. Buzzard, Deputy Pros. Atty., O'Leary, Meyer & O'Leary, Olympia, for respondent.

DONWORTH, Judge.

This is an appeal by the Washington State Board Against Discrimination (herein called the Board) from a judgment entered by the Superior Court of Thurston County overruling an order of a hearing tribunal and dismissing its complaint against the board of directors of Olympia School District No. 1 (herein called the School District)

The dispute arose under RCW chapter 49.60, which the legislature has designated as the 'law against discrimination.' In the amended complaint, the Board charged the School District with the commission of an unfair practice consisting of requesting applicants for employment to submit pre-employment photographs in violation of RCW 49.60.180 ¹ and also a regulation (WAC 162--16--010) ² promulgated by the Board pursuant to RCW 49.60.120(3).

Pursuant to the provisions of RCW 49.60.250, a hearing tribunal consisting of three persons was appointed to hear the charges set forth in the complaint. Two of them were members of the Board and the third was an attorney practicing at Olympia. After hearing the evidence and arguments presented, this tribunal entered findings, conclusions, and an order dated April 23, 1963. It found that the School District had been and was continuing to request pre-employment photographs from applicants for employment as teachers, and concluded that this was an unfair practice. The tribunal ordered the School District to cease and desist such practice, and to comply with the statutory provisions and the Board's regulations quoted in footnotes 1 and 2. In a memorandum opinion, the tribunal stated:

The attaching of photographs is a graphic specification of the applicant's race or color, as much, or more, than the affixing of the words 'negro' or 'oriental' would be. * * *

Thereafter, the School District petitioned the superior court to set aside the tribunal's order to cease and desist the alleged unfair practice.

The Board moved to dismiss this petition on the ground that the School District was a political or civil subdivision of the state which, under RCW 49.60.270 and 49.60.300, had no standing to have the tribunal order reviewed by the superior court.

After hearing argument on this motion the superior court denied it by written order, in which it was stated that:

the reference to RCW 49.60.270 in the Petition to Set Aside Order should be disregarded because it is surplusage and that the Petition to Set Aside Order should be considered a petition for judicial review under the Administrative Procedure Act, RCW 34.04.130.

The court subsequently, pursuant to stipulation of the parties, entered an order staying the effect of the tribunal's order to cease and desist pending the court's final disposition of the matter.

At the time set for hearing the cause, the court red and heard the evidence and the arguments of counsel and made its findings of fact and conclusions of law. The court entered judgment overruling the order to cease and desist and dismissing the entire proceedings.

In its oral opinion, the trial court stated its reasons for holding that the Board's regulation (WAC 162--16--010) was in excess of its statutory authority and, hence, void. In substance, they were: (1) that the regulation had no reasonable relation to the evil sought to be remedied because a personal interview will disclose the applicant's race 'more effectively and more certainly than any photograph,' and (2) that a simple request for a photograph does not express any intent to make any discrimination in violation of RCW 49.60.180(4).

The Board has appealed to this court from the trial court's judgment. The attorney general, in his brief filed on behalf of the Board, makes the following 5 assignments of error.

1. The trial court erred in denying the appellant's motion to dismiss the Olympia School Board's petition to set aside order.

2. The trial court erred in receiving new evidence over objection when conducting a review of an administrative hearing pursuant to the Administrative Procedure Act (Title 34 RCW, a particularly RCW 34.04.130(5), supra) where there was no allegation of 'irregularities in procedure before the agency, not shown in the record * * *.'

3. The trial court erred in finding that the appellant's actions were in excess of its statutory authority; specifically, the court erred in its Conclusion of Law II, which is:

'The simple request for a pre-employment photograph does not express any limitation, specification or discrimination as to age, race, creed, color or national origin or any intent to make any such limitation, specification or discrimination and, therefore, the rule and regulation goes beyond the scope of the authority granted by R.C.W. 49.60.180(4) and is void.'

4. The trial court erred in finding that the appellant's actions were unreasonable; specifically in its Conclusion of Law III, which is:

'The regulation relating to photographs does not have a reasonable relationship to the evil that it seeks to remedy as it is ineffective as long as a personal interview is allowed, as the personal interview will disclose age, race, creed, color or national origin much more certainly than any photograph. Therefore, the Court further concludes that said regulation and order are arbitrary and capricious and for said reasons the Court concludes that said regulation and order are void.'

5. The trial court erred in granting judgment for the Olympia School Board and against the appellant.

We now address ourselves to appellant's first assignment of error, which is that the School District does not have a right to appeal to the superior court from the hearing tribunal's order because of RCW 49.60.300, which provides as follows:

RCW 49.60.260 to 49.60.290, inclusive, shall not be applicable to orders issued against any political or civil subdivision of the state, or any agency, office, or employee thereof.

The sections of the statute referred to in the above quotation authorize any respondent or complainant who is aggrieved by the order of the hearing tribunal to seek a review thereof in the superior court by complying with the procedure prescribed therein.

In its argument in support of its first assignment of error, the Board (before discussing these provisions of the law against discrimination) explains that the School District bases its right of appeal on certain parts of the Administrative Procedure Act (RCW 34.04). The Board states its position in its brief as follows:

The appellant believes that the Administrative Procedure Act (chapter 34.04 RCW) supersedes prior inconsistent laws and gives a uniform type of judicial review to any person aggrieved in a contested case before an administrative tribunal. This follows from RCW 34.04.130, which states:

'(1) Any person aggrieved by a final decision in a contested case * * * is entitled to judicial review thereof Only under this chapter. * * *' (Emphasis supplied.) and from RCW 34.04.910:

'All acts or parts of acts which are inconsistent with the provisions of this chapter are hereby repealed, but such repeal shall not affect pending proceedings.'

Elsewhere in this brief, the Administrative Procedure Act is cited as the controlling law.

However, this same argument was made in the brief of appellant in Arnett v. Seattle General Hospital, No. 36936, pages 5--13, and the decision of the court gave no indication that it was accepted. Arnett v. Seattle General Hospital, 65 Wn.2d 22, 395 P.2d 503 (1964).

However, the Board thereafter argued in support of its assignment of error No. 1. The substance of the argument by the Board is reflected later in this opinion.

The School District agrees with the Board's contention regarding the applicability and controlling effect of the Administrative Procedure Act as to the School District's right of appeal in the present case, and states position in its brief as follows:

In this connection we agree with the appellant that the Administrative Procedure Act (34.04 RCW) supersedes prior inconsistent laws and gives all persons aggrieved in a contested proceeding before an administrative tribunal the right to review or appeal from the courts (RCW 34.04.130). We agree with the appellant that the better rule would be to hold that the Administrative Procedure Act supersedes RCW 49.60.300, and that a school district has the right to appeal from the order of the hearing tribunal. This case is an excellent example as to why it is unwise to allow an administrative board such as the appellant to issue orders which directly affect the statutory duties of other agencies of the government and to provide that such orders are not reviewable by the courts.

Even though both parties are in agreement with respect to the application of the Administrative Procedure Act to the facts presented by this case, we are of the opinion that the trial court had no jurisdiction to review the final order of the hearing tribunal. Our reasons for so holding are based on our study of the legislative acts referred to by the parties.

The law against discrimination was first enacted in 1949. See Laws of 1949, chapter 183. It was directed specifically to the elimination and prevention of discrimination in employment. In § 9(d), provision was made whereby any respondent aggrieved by the final order of a hearing tribunal might obtain a review thereof in the superior court by following the procedure prescribed therein. In § 9(h), it was...