Washington State Liquor Controlboard v. Washington State Personnel Bd.
| Decision Date | 10 March 1977 |
| Docket Number | No. 44378,44378 |
| Citation | 88 Wn.2d 368,561 P.2d 195 |
| Parties | WASHINGTON STATE LIQUOR CONTROLBOARD, and Jack C. Hood, Chairman, Appellants, v. WASHINGTON STATE PERSONNEL BOARD, and Leonard Nord, Director, Respondents, Arlene Rees and Mary Ashley, Intervenor/Respondents. |
| Court | Washington Supreme Court |
Slade Gorton, Atty. Gen., John G. Hennen, Asst. Atty. Gen., Olympia, for appellants.
Hafer, Cassidy & Price, Thomas K. Cassidy, Seattle, Fuller & Fuller, Herbert Fuller, Olympia, Slade Gorton, Atty. Gen., Kenneth Elfbrandt, Asst. Atty. Gen., Olympia, for respondents.
Arlene Rees and Mary Ashley, who were employed as liquor store clerks, were discharged by the Washington State Liquor Board. They each appealed their discharge to the Washington State Personnel Board, which, after hearings, directed the liquor board to rehire them. The liquor board then filed a petition for review in each case in Superior Court, pursuant to RCW 34.04.130, urging reversal of the personnel board ruling. The Superior Court dismissed the petition of the liquor board in both cases, holding the board lacked standing to appeal as a 'person aggrieved' within the applicable judicial review provision of the state Administrative Procedure Act. The court also considered the merits of each case and determined that, if the liquor board did have the requisite standing, it would affirm the decisions of the personnel board. We affirm the Superior Court and dismiss the appeals.
The two boards here involved have broad responsibilities. The liquor board is a state agency responsible for regulation of the state-controlled retail liquor business pursuant to RCW Title 66. The personnel board governs the State Department of Personnel and is responsible for regulation of the state civil service system pursuant to RCW 41.06. These entities, as agencies of the state, are subject to legislative control and direction.
The applicable provision of RCW 34.04.130, the Administrative Procedure Act regulation governing appeals, provides:
(1) Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof only under the provisions of this . . . act . . .
Judicial review of the decisions of the personnel board in contested cases is governed by this statute. RCW 34.04.150.
The source of a state agency's rights, powers, duties, and privileges and immunities is statutory. Subject to the inherent constitutional power of the judiciary to review illegal or manifestly arbitrary and capricious action, it is for the legislature to decide whether one state agency may appeal or obtain judicial review of an adverse decision rendered by another state agency. State ex rel. Hood v. Personnel Bd., 82 Wash.2d 396, 511 P.2d 52 (1973). The liquor board argues that both it and its chairman, Jack C. Hood, are 'persons aggrieved' within the terms of RCW 34.04.130. The Administrative Procedure Act contains no definitions of the meaning of the term 'person aggrieved' and this failure gives rise to the necessity to consider the issues presently before us. In Hood (a case involving the same agencies as are presently before the court), the liquor board sought a writ of certiorari to secure review of a decision of the personnel board. In the course of the opinion in that case, denying issuance of the writ, this court had occasion to observe, at page 399, 511 P.2d at page 54:
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) With 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.)
In State Board Against Discrimination v. Olympia School Dist. 1, 68 Wash.2d 262, 412 P.2d 769 (1966), it was held that a similar provision, precluding appeal by state agencies from decisions of the State Board Against Discrimination, was not expressly repealed by any provision of the state Administrative Procedure Act or impliedly repealed by the general repealer clause contained therein and codified as RCW 34.04.910. The court therefore concluded that a state agency was precluded by the express language of the relevant underlying statute controlling the State Board Against Discrimination from seeking review of a decision of that board adverse to it.
The foregoing decisions appear, at least initially, to be dispositive of the issue before us. The Olympia School Dist. case stands for the general principle that where a statute upon which agency action is based limits the right to appeal, that statute is determinative, absent express or implied repeal, of the issue of standing for purposes of judicial review. In Hood, it was pointed out that the underlying statute upon which the action of the personnel board here at issue is based limits the right of appeal solely to employees. The statute has not been expressly repealed by the legislature. Thus, unless it can be shown that RCW 41.06.200 has in some manner been impliedly repealed, appellants' argument must fail.
The liquor board contends an examination of legislative amendments to the Administrative Procedure Act since our decision in State Bd. Against Discrimination v. Olympia School Dist. 1, supra, indicates an intent on the part of the legislature to grant agencies such as the liquor board the right to appeal administrative decisions of other state agencies. In examining these contentions, we must be mindful of the principle that repeals by implication are not favored in law. A later act will not operate to repeal an earlier act except in instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject or unless the two acts are so clearly inconsistent with and repugnant to each other they cannot, by fair and reasonable construction, be reconciled and both given effect. Abel v. Diking & Drainage Improvement Dist. No. 4, 19 Wash.2d 356, 142 P.2d 1017 (1943); Jenkins v. State, 85 Wash.2d 883, 540 P.2d 1363 (1975).
Since our decision in Olympia School Dist., the Administrative Procedure Act has been substantially amended on several occasions. Appellants first argue, with regard to these amendments, that the failure of the legislature to enact a definition of 'person' which would clearly exclude a state agency, while amending the definition section of the Administrative Procedure Act after the Supreme Court had pointed out the lack of definition of the word in Olympia School Dist., is evidence that the legislature intended a state agency should not be excluded from the limits of that term. Appellants' argument is not persuasive. Historically, both the model state Administrative Procedure Act (See 9 U.L.A. 435) and the federal act (See 5 U.S.C.A. § 551(2)) limit the scope of the term 'person' so as not to include an agency of the government. While our legislature has not incorporated this language in our statutes, when our state has intended to grant agencies of the state the right of appeal it has done so in explicit language. The Shoreline Management Act of 1971, RCW 90.58, specifically defines a 'person' for purposes of the right to appeal to mean, among other things, an 'agency of the state or local governmental unit however designated.' RCW 90.58.030(1)(d). The director of revenue is likewise given specific authority to seek review from a decision of the Board of Tax Appeals. RCW 82.03.180 provides in part: 'The director or revenue shall have the same right of review from a decision . . . as does a taxpayer.'
It is not clear what significance, if any, can be attached to the failure of the legislature to include a definition of the term 'person' within the act. The limited scope of the term as set forth in both the model act and the federal Administrative Procedure Act certainly militates against the appellants' argument. While the term 'person', when used in a statute, may include a state agency (RCW 1.16.080), it is significant that the legislature did not use the words 'agency', 'person' or 'party' interchangeably in the Administrative Procedure Act, but rather seemed to attach different meanings to each. This is most strikingly indicated in the savings clause of RCW 34.04.940, which provides '(e)xcept as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons.' 1
We find that, rather that supporting appellants' position, the failure to provide a definition which expressly includes an agency within the word 'person', coupled with the varying use of these terms throughout the Administrative Procedure Act, is indicative of an intent that an agency not be considered to be a 'person aggrieved' under the act.
In immediate response to the Olympia School Dist. decision, the senate did pass a resolution directing the legislative council to investigate, and in conjunction with other state agencies, prepare legislation eliminating conflict between specific agency statutes and the Administrative Procedure Act. (Senate Journal, 40th Legislature (1967), at 1364). In 1971, the specific provision relied upon in Olympia School Dist., precluding agency appeal of a decision of the State Board Against Discrimination, was expressly repealed. Laws of 1971, 1st Ex.Sess., ch. 52, § 1. Available legislative history indicates rather clearly that this action was taken in direct response to the Olympia School Dist. decision. In addition, the judicial review provision of the Administrative Procedure Act, RCW 34.04.130, and the general repeal and saving provision of the act, RCW 34.04.910, were amended in 1967. 2
Appellants contend that these...
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