Association of Washington Business v. Department of Revenue ( 2005 )

¶34 Alexander, C.J.

(concurring) — I agree with the majority’s conclusion that the Department of Revenue has the authority to issue interpretative rules. I write separately simply to express my view that an agency’s interpretative rules should be clearly differentiated from its legislative rules.

¶35 As the majority observes, an agency’s interpretation of a statute, whether or not codified as an interpretive rule, is not authoritative. Majority at 446-47. Courts are not bound by an agency’s interpretive rules. Id. Legislative rules, on the other hand, if properly promulgated, are binding on the courts. Id. (citing Weyerhaeuser Co. v. Dep’t of Ecology, 86 Wn.2d 310, 314-15, 545 P.2d 5 (1976)). Thus, the legal effect of an interpretative rule is quite different from the legal effect of a legislative rule.

f 36 Where interpretive rules are formatted in the same manner and published alongside legislative rules, they are indistinguishable. The failure to differentiate interpretive rules from substantive rules very likely misleads the reader, particularly those without training or experience in the law, into believing that interpretative rules have the same legal effect as legislative rules. I believe, therefore, that the better practice for the Department of Revenue would be to label its interpretative rules as just that. While we cannot compel the department to do so, I urge it to consider taking such a positive and sensible step.

Chambers and J.M. Johnson, JJ., concur with Alexander, C.J.