Stewart v. Emp't Sec. Dep't

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SUSAN CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CYNTHIA STEWART,
Appellant, No. 93759-1
V.
EN BANC
STATE OF WASHINGTON,
DEPARTMENT OF
EMPLOYMENT SECURITY, Filed: ^ 4
Respondent.
YU, J.— Cynthia Stewart petitioned for judicial review of an administrative
decision that she is ineligible for unemployment benefits. Her petition is not
subject to the procedural statutes in the Employment Security Act (ESA), Title 50
RCW, which apply only to administrative review. Instead, her petition for judicial
review is governed by the procedural statutes in the Administrative Procedure Act
(APA), chapter 34.05 RCW. And pursuant to the APA, Stewart did not timely
serve her petition on the Employment Security Department (ESD). She therefore
Stewart v. Dep't ofEmp't Sec., No. 93759-1
failed to invoke the superior court's appellate jurisdiction as prescribed by law, and
the court correctly recognized that it was required to dismiss this case. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Stewart suffers from migraine headaches and takes prescription medication
to help manage her symptoms. Her former employer fired Stewart after she "came
to work impaired due to prescription narcotics for the second time in a six-month
period." Admin. R. at 189. Stewart's application for unemployment benefits was
initially granted, but her former employer appealed, and an administrative law
judge reversed. Stewart petitioned for review by the BSD commissioner, who
affirmed that Stewart was ineligible for unemployment benefits.
Stewart then petitioned for judicial review of the commissioner's decision in
superior court. She attempted to serve BSD by sending a copy of her petition by
mail, but BSD did not receive it until 31 days after the commissioner's decision.
Many months after appearing in the superior court proceeding, BSD moved to
dismiss, contending that Stewart's service on BSD was untimely pursuant to RCW
34.05.542 and WAC 192-04-210. The trial court granted the motion, concluding
that Stewart's service on BSD was completed 1 day too late and that dismissal was
mandatory. Stewart sought direct review by this court, which we granted.
Stewart v. Dep't ofEmp't Sec., No. 93759-1
ISSUES
A. Did Stewart timely serve her petition for judicial review on BSD?
B. If not, was Stewart's petition subject to mandatory dismissal?
ANALYSIS
Since the 1930s, our legislature has maintained an unemployment
compensation program "to prevent [the] spread and to lighten [the] burden" of
"economic insecurity due to unemployment." RCW 50.01.010. The ESA provides
substantive rules about which unemployed workers are eligible for benefits and the
amount of benefits to be paid. It also includes specific procedural statutes for
administering Washington's unemployment compensation program.
Among other things, these procedural statutes require multiple levels of
administrative review of initial benefits decisions before the parties are permitted
to seek judicial review of those decisions in superior court. Briefly, BSD,as the
executive branch's designated administrative agency, makes the initial
determination about eligibility and benefits. RCW 50.08.010. Then the claimant
or employer may seek administrative review by an "appeal tribunal"(an appointed
administrative law judge). RCW 50.32.010,.040. If any party disagrees with the
decision ofthe administrative law judge, he or she may seek further administrative
I
review by the BSD commissioner. RCW 50.32.070-.080. Only after the
Stewart v. Dep't ofEmp't Sec., No. 93759-1
commissioner issues a decision may the parties seek judicial review. RCW
50.32.090,.120.
In this case, Stewart petitioned for judicial review of the BSD
commissioner's decision in superior court, and she mailed a copy of her petition to
BSD. We must decide whether this mailing constituted timely service on BSD and,
if not, whether the superior court properly dismissed this case.
A. Stewart's petition was not timely served on BSD
As explained below, Stewart timely served her petition for review on BSD
if, and only if, the BSA's procedural statutes apply in this context. Thus,the
narrow, statutory question presented is whether the BSA's procedural rules apply
when a party seeks judicial review of a commissioner's decision about a claimant's
eligibility for unemployment benefits. We hold that they do not and, therefore,
that Stewart did not timely serve her petition on BSD.
Pursuant to the A?A,in order to tirriely perfect her appeal, Stewart was
required to serve her petition on BSD "within thirty days after the agency action."
RCW 34.05.542(3). The APA explicitly provides that "[sjervice of the petition on
the agency shall be by delivery.'''' RCW 34.05.542(4)(emphasis added).
"Delivery" for these purposes "shall be deemed to have been made when a copy of
Stewart v. Dep't ofEmp't Sec., No. 93759-1
the petition for judicial review has been receivedhy the Commissioner's Office."'
WAG 192-04-210 (emphasis added). It is undisputed that Stewart's petition was
not actually received by ESD until 1 day after the 30-day deadline expired.
Therefore, in accordance with the APA,service was untimely.
However, Stewart did put a copy of her petition addressed to ESD in the
mail within the 30-day time limit, and the ESA's procedural statutes provide that a
mailed petition is deemed "received" on the date it is postmarked. ROW
50.32.025(1). Therefore, service would be timely ifthe ESA's procedural statutes
applied in this context. Whether they do is a question of statutory interpretation
subject to de novo review. Dep't ofEcology v. Campbell & Gwinn, LLC, 146
Wn.2d 1,9,43 P.3d 4(2002).
According to the plain meaning of the relevant statutes, the ESA does not
apply. Moreover, the legislative history shows that the statutes' plain meaning
accurately reflects the legislature's intent. We therefore hold that the APA applies
and RCW 50.32.025 does not, so Stewart did not timely serve her petition on ESD.
'Service on the administrative agency is explicitly differentiated from service on the
other parties and the attorney general. Those entities may be served by "mail," and service is
"deemed complete upon deposit in the United States mail, as evidenced by the postmark. RCW
34.05.542(4); see also RCW 34.05.010(19). However,RCW 34.05.542(4) clearly provides that
service on the agency must be by delivery, not by mail. We therefore reject Stewart s argument
that WAC 192-04-210 invalidly conflicts with the APA.
Stewart v. Dep't ofEmp't Sec.,'Ho. 93759-1
1. The statutes' plain meaning requires us to apply the APA
As Stewart correctly points out, the isolated language of RCW 50,32.025
could suggest that it applies here because that statute provides in general terms that
it applies to a "petition from a ... commissioner's decision." But we must
consider the meaning ofthis language "frohi all that the Legislature has said in the
statute and related statutes which disclose legislative intent about the provision in
question." Campbell & Gwinn, 146 Wn.2d at 11. In this case, related statutes
make it clear that RCW 50.32.025 applies only to petitions for administrative
review of a commissioner's decision. Petitions forjudicial review are governed
solely by the APA.
The ESA specifically provides that "[a]ny decision of the commissioner
involving a review of an appeal tribunal decision, in the absence of a petition
therefrom as provided in chapter 34.05 RCW,becomes final thirty days after
service." RCW 50.32.090 (emphasis added). It further provides that "Ij]udicial
review of a decision ofthe commissioner involving the review of an appeals
tribunal decision may be had only in accordance with the procedural requirements
ofRCW 34.05.570." RCW 50.32.120(emphasis added). Where these more
specific statutes apply, they must be given effect over RCW 50.32.025's general
provisions. Residents Opposed to Kittitas Turbines v. State Energy Facility Site
Evaluation Council, 165 Wn.2d 275, 309, 197 P.3d 1153 (2008). And according to
Stewart v. Dep't ofEmp't Sec.,'Ho. 93759-1
the plain meaning ofthese specific statutes, the APA governs the procedure for
judicial review.^ This is entirely consistent with the legislature's pronouncement
that the APA "establishes the exclusive means ofjudicial review of agency action,"
RCW 34.05.510.
In this case, Stewart indisputably sought "[jjudicial review of a decision of
the commissioner involving the review of an appeals tribunal decision." RCW
50.32.120. Therefore, the specific provisions ofRCW 50.32.090 and .120 apply.
And according to the plain meaning ofthose statutes, "[jjudicial review of a final
administrative decision of the Commissioner of the Employment Security
Department is governed by the Washington Administrative Procedure Act."
Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397,402,858 P.2d 494(1993).
2. The legislature intended the statutes' plain meaning
We must apply this plain meaning because the legislative history shows that
it is exactly what the legislature intended. The legislature intentionally eliminated
inconsistent, agency-specific procedural rules for seeking judicial review, first by
enacting a single, statutory framework applicable to all agencies (the APA), and
^ This reading does not make RCW 50.32.025's reference to petitions for review of
commissioner's decisions superfluous. RCW 5032.090 and .120 explicitly apply only to
petitions forjudicial review of a commissioner's decision. Those statutes thus have no effect on
RCW 50.32.025's applicability to petitions for further administrative review. E.g., RCW
50.20.160; RCW 50.29.070(providing for administrative reconsideration of a commissioner's
decision).
Stewart v. Dep't ofEmp't Sec., No. 93759-1
then by removing the procedural rules for judicial review from agency-specific
statutes (including the ESA). We therefore must apply the plain meaning ofthe
statutes in order to carry out our "fundamental objective ... to ascertain and carry
out the Legislature's intent." Campbell & jGwinn, 146 Wn.2d at 9.
"Before 1959, there was no generalized administrative procedure in
Washington. Each state agency's rule-making or adjudicative process was
governed by each agency's respective statute." Office of Att'y Gen.,
Administrative Procedure Act Deskbook 1-5 (5th ed. 2009). Therefore, the
ESA used to contain specific procedures for seeking judicial review of a
commissioner's decision, which provided in relevant part as follows:
Such appeal shall be perfected by serving a notice of appeal on the
commissioner personally, by personal service, or by mailing a copy
thereofto the commissioner, and by: filing the notice of appeal
together with proof of service thereof with the clerk ofthe court and
by complying with the requirements of this title relating to
undertakings on appeal. The service and the filing together with proof
of service of the notice of appeal and compliance with the provisions
of this title relating to undertakings on appeal, all within thirty days,
shall be jurisdictional.
Former RCW 50.32.120(1971). When these specific procedures were part ofthe
ESA, a commissioner's decision became "final" after 30 days "in the absence of an
appeal therefrom as provided by this act." Former RCW 50.32.090(1945).
However, in 1959, the Washington Legislature began moving toward
consistency for all judicial review of agency actions with an early version ofthe
Stewart v. Dep't ofEmp't Sec., No. 93759-1
APA,former chapter 34.04 RCW (1959). This early legislation provided general
administrative procedural statutes and directed each agency to "adopt rules
governing the formal and informal procedures prescribed or authorized by this
act." Laws of 1959, ch. 234, § 2(1).
But the 1959 legislation did not repeal the specific procedural rules already
contained in the ESA. Confusion therefore arose because there were two different
sets of potentially applicable rules, and unlike the current statutes, the former
statutes provided no guidance about which rules should apply in which
circumstances. Agency Note on Proposed Technical Amendments to H.B. 420, at
1, 4, 43d Leg., 1st Ex. Sess.(Wash. 1973)(prepared by ESD). As a result, in 1973,
the legislature amended the ESA "by making any decision of the commissioner
reviewable according to the provisions ofthe state APA" and "by deleting the
entire section dealing with superior court review of a commissioner's decision and
requiring that such review be held only in accordance with the procedural
requirements of the state APA." S.B. Rep. ON H.B.420,43d Leg., 1st Ex. Sess.
(Wash. 1973).
The lengthy statute governing judicial review procedures specific to the ESA
was replaced with a straightforward directive: "Judicial review of a decision ofthe
commissioner involving the review of an appeals tribunal decision may be had
only in accordance with the procedural requirements of[former] RCW 34.04.130
Stewart v. Dep'tofEmp'tSec.,'\^o. 93759-1
[(1967)]." Laws OF 1973, 1st Ex. Sess., ch. 158, § 16. Consistently, the provision
governing finality of the commissioner's decision was amended to make it clear
that the decision became "final" after 30 days unless a petition was filed "as
provided in [former] RCW 34.04.130." Id. § 15. The statutory references have
since been amended to reference current APA provisions, but they are
substantively unchanged. RCW 50.32.090,.120.
It is true that former RCW 34.04.130 contained both substantive and
procedural components, while current RCW 34.05.570 contains only substantive
provisions. See dissent at 3-4. However, even if the legislature did intend its
updated statutory references to effect a substantive change to RCW 50.32.120, as
the dissent contends, it certainly did not intend any such change when it updated
RCW 50.32.090, which unambiguously makes final "[a]ny decision ofthe
commissioner involving a review of an appeal tribunal decision, in the absence of a
petition therefrom as provided in chapter 34.05 RCfV." (Emphasis added.)
Chapter 34.05 RCW clearly includes the procedural requirements ofRCW
34.05.542. There is thus no basis on which to conclude that the legislature
intended to apply the APA's substantive rules to petitions for judicial review of
ESD decisions, but nevertheless intended to exempt such petitions from the APA's
procedural rules. Contra dissent at 4.
10
Stewart v. Dep't ofEmp't Sec., No. 93759-1
From this history, it is apparent that the legislature intended to make judicial
review of BSD decisions subject only to the procedural rules ofthe APA.
Therefore, we adhere to the general rule that "ifthe statute's meaning is plain on
its face, then the court must give effect to that plain meaning as an expression of
legislative intent." Campbell & Gwinn, 146 Wn.2d at 9-10. We thus hold that the
APA controls, that RCW 50.32.025 does riot apply, and that Stewart did not timely
ser\'e her petition for judicial review on BSD.
B. The superior court correctly ordered dismissal
In the alternative, Stewart contends that BSD waived or forfeited any
argument about untimely service by failing to raise that issue until long after it
appeared in the superior court proceeding.: However, in accordance with our
precedent, Stewart was required to comply strictly with the APA's perfection
deadline before the superior court had authority to exercise its appellate
jurisdiction pursuant to article IV, section 6 ofthe Washington Constitution. BSD
has no authority to waive untimely service, either explicitly or by implication. We
1
therefore affirm the superior court's order of dismissal.
Adjudicators in administrative agencies like BSD are "inferior courts"
created by the legislature. Const, art. IV, § 12. There is no independent
constitutional right to judicial appeal from an inferior court's decisions in civil and
administrative cases. Residents Opposed, 165 Wn.2d at 295. Rather, the
11
Stewart v. Dep't ofEmp't Sec., No. 93759-1
Washington Constitution provides that superior courts "shall have such appellate
jurisdiction in cases arising injustices' and other inferior courts in their respective
counties as may be prescribed by law." CONST, art. IV, § 6(emphasis added).
In accordance with this constitutional structure,'"[wjhen reviewing an
administrative decision, the superior courtis acting in its limited appellate
capacity, and all statutory procedural requirements must be met before the court's
appellate jurisdiction is properly invoked.'" Union Bay Pres. Coal. v. Cosmos
Dev. & Admin. Corp., 127 Wn.2d 614, 617, 902 P.2d 1247(1995)(quoting City of
Seattle v. Pub. Emp't Relations Comm 'n, 116 Wn.2d 923,926, 809 P.2d 1377(1991)). Thus,the legislature has the authority to enact procedural rules for
invoking the superior courts' appellate jurisdiction to review the decisions of
inferior courts in civil cases, while the superior courts have no authority to act in
such cases unless their appellate jurisdiction is invoked as prescribed by law. E.g.,
Conom V. Snohomish County, 155 Wn.2d 154, 157, 118 P.3d 344(2005); Skagit
Surveyors & Eng'rs, LLC v. Friends ofSkagit County, 135 Wn.2d 542, 555,958
P.2d 962(1998); Union Bay, 127 Wn.2d at 617-18; City ofSeattle, 116 Wn.2d at
926-27; MacVeigh v. Div. of Unemployment Comp., 19 Wn.2d 383,385, 142 P.2d
900(1943). This constitutional limitation cannot be waived by any party, and "[a]
court lacking jurisdiction must enter an order of dismissal." Conom, 155 Wn.2d at
157.
12
Stewart v. Dep'tofEmp'tSec.,^o. 93759-1
As we have previously held, compliance with statutory time limits for
perfecting appeals from inferior courts is necessary "in order to invoke the
jurisdiction ofthe superior court."^ Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 198,
796 P.2d 412(1990). We have also held that the test for compliance is strict
because "[i]t is impossible to substantially comply with a statutory time limit....
It is either complied with or it is not." City ofSeattle, 116 Wn.2d at 928-29. Here,
as discussed above, it was not.
The legislature, with its broad constitutional authority to prescribe rules for
judicial review of decisions by inferior courts in civil cases, has had ample
opportunity to amend the statutes if our interpretations were incorrect or if the
consequences have proved harmful. It has not done so. In fact, the legislature
itself has specifically provided that "[a]n agency may not modify time limits
relating to rule-making procedures or the time limitsforfiling a petitionfor
judicial review specified in RCW34.05.542." RCW 34.05.080(1)(emphasis
added). We therefore reaffirm that "[b]y failing to serve its petitions within the 30
^ We have clarified that some statutory procedural requirements for judicial review of
agency actions do not, in fact, limit the superior courts' appellate jurisdiction. For instance, we
held that a statute limiting review of Washington State Gambling Commission decisions to the
Thurston County Superior Court merely "establishes the proper venue for judicial review"
because, once the jurisdiction of the superior courts is invoked, every superior court has the
power to hear and decide the case (that is, every superior court has subject-matter jurisdiction).
ZDlGaming, Inc. v. Wash. State Gambling Comm'n, 173 Wn.2d 608,619, 268 P.3d 929(2012).
In this case, however, the appellate jurisdiction of the superior courts was not invoked because
Stewart never timely perfected her petition for judicial review.
13
Stewart v. Dep't ofEmp't Sec., No. 93759-1
day time limit," a party "fail[s] to invoke the superior court's appellate
jurisdiction.'"^ City ofSeattle, 116 Wn.2d at 929.
In this case, along with the commissioner's decision affirming denial of her
benefits, Stewart received instructions for seeking judicial review, including a
specific notice that "[t]o properly serve by mail, the copy of your judicial appeal
must be received by the Employment Security Department on or before the
thirtieth (30^'^) day of the appeal period." Clerk's Papers at 53. Stewart did not
timely serve her petition on BSD in accordance with this notice. And by statute,
the commissioner's decision became "final" when Stewart failed to perfect her
petition for judicial review within 30 days. ROW 50.32.090. The superior court
was therefore without authority to exercise its appellate jurisdiction over this case
and properly determined that dismissal was mandatory.^
We recognize that some federal cases have declined to treat certain procedural "'claim-
processing'" statutes "as having 'jurisdictional' consequences." Henderson v. Shinseki, 562 U.S.
428,435,431, 131 S. Ct. 1197, 179 L.Ed. 2d 159(2011). However,the relevant question is not
whether the court should attach jurisdictional consequences to a procedural statute. The question
is whether the legislature intended to do so, because the legislature "is free to attach the
conditions that go with the jurisdictional label to a rule that we would prefer to call a claim-
processing rule." Id. at 435. This is a question of statutory interpretation, and in the context of
the APA's 30-day perfection deadline, we have already answered it. The legislature appears to
agree with our answer, and Stewart does not otherwise show that our precedent is incorrect and
harmful. We therefore decline to reconsider it. State v. Otton, 185 Wn.2d 673, 678, 374 P.3d
1108 (2016).
^ Stewart briefly argues that mandatory dismissal violates her federal constitutional right
to procedural due process. See Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,47 L. Ed. 2d
18 (1976). However, Stewart's argument on this topic is limited in substance to her contention
that ESD's statutory interpretation is unfair. That is not the relevant inquiry. See id. at 335. We
therefore decline to hold that Stewart has shown any federal procedural due process violation.
14
Stewart v, Dep 't ofEmp 't Sec., No. 93759-1
CONCLUSION
The APA is the only source of procedural rules applicable to Stewart's
petition for judicial review from the commissioner's decision, and Stewart did not
timely serve BSD in accordance with the APA. Therefore, Stewart never invoked
the superior court's appellate jurisdiction as prescribed by law, and dismissal was
mandatory. We affirm.
15
Stewart v. Dep't ofEmp't Sec., No. 93759-1
WE CONCUR:
ja.
16
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
No. 93759-1
WIGGINS, J. (dissenting)—The legislature has emphatically declared that
"economic Insecurity due to unemployment Is a serious menace to the health, morals,
and welfare of the people of this state." RCW 50.01.010. Accordingly, the legislature
has assumed responsibility for Its combat: "Involuntary unemployment . . . requires
appropriate action by the legislature to prevent Its spread and to lighten Its burden
which now so often falls with crushing force upon the unemployed worker and his or
her family." Id. In answering this call, the legislature recognized that we, the court,
may ultimately have a role to play In "protectl[ng] against this greatest hazard of our
economic life" and Instructed us accordingly:
[T]hls title shall be liberally construed for the purpose of reducing
Involuntary unemployment and the suffering caused thereby to the
minimum.
Id.The majority does not construe the Employment Security Act(ESA)liberally to
minimize the suffering caused by unemployment. Instead, the majority holds that
service on the Employment Security Department(ESD) Is complete only when ESD
receives the petition, ultimately making It more difficult for the unemployed to obtain
relief. Because the statutory language and the specific legislative direction to Interpret
the ESA liberally to relieve suffering Indicate that service on ESD Is complete upon
mailing, I respectfully dissent.
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
ANALYSIS
1. The Administrative Procedure Act (APAL chapter 34.05 RCW. is a general
statute, and RCW 34.04.130 no longer exists
The majority holds that we must give effect to the APA's service requirements
over the ESA's service requirements and that Cynthia Stewart's petition was therefore
untimely. The majority reaches this conclusion by misapplying the canon of statutory
construction that the specific governs the general and by relying on language from
prior versions of the ESA and APA that does not exist in the current statutes.
First, the majority mistakenly identifies the APA as a specific statute and the
ESA as a general statute. The majority then applies the well-settled rule of statutory
construction that the specific statute must be given effect over the general statute and
holds that the APA, as a specific statute, must be given effect over the ESA, as a
general one. Majority at 6. However, this court has repeatedly determined that the
APA is a general statute that should not be given effect over a more specific statute.
Muije V. Dep't of Soc. & Health Servs., 97 Wn.2d 451, 453, 645 P.2d 1086 (1982)
(determining that the APA is a general statute because it "only deals generally with
review of 'any' agency decision," and holding that the State Civil Service Law is a
specific statute and thus must be given effect over the APA).''
See also Olson v. Univ. of Wash., 89 Wn.2d 558, 562, 573 P.2d 1308 (1978)(determining
that the State Higher Education Personnei Law (HEPL), not the APA, governs an agency
appeai because the HEPL was the more specific statute): Residents Opposed to KIttltas
Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 309, 197 P.3d
1153 (2008)(holding that the Growth Management Act is a general statute and the energy
facilities site locations act is a specific statute and that the order in which the statutes were
passed did not matter: "if the general statute was enacted after the specific statute, this court
will construe the original specific statute as an exception to the general statute, unless
expressly repealed").
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
Second, the majority relies on language from former versions of the ESA and
the APA that does not exist In the current versions of the statutes.
The majority correctly points out that pre-1988, the ESA required judicial review
to be had '"In accordance with the procedural requirements of [former] RCW
34.04.130"' of the APA, which provided an extensive procedural framework for judicial
review. Majority at 9 (alteration In original)(quoting Laws of 1973, 1st Ex. Sess., ch.
158,§ 18). However, the legislature has since entirely replaced the APA and rewritten
former RCW 34.04.130, recodlfying It as RCW 34.05.570. Laws of 1988, ch. 288, §
706. The legislature amended the ESA acclDrdlngly, to note that judicial review must
now be In accordance with RCW 34.05.570. RCW 50.32.120.
Without quoting language from either statute, the majority asserts that the
revised APA provision—RCW 34.05.570—Is "substantlvely unchanged" from the
former APA provision—RCW 34.04.130—and thus the APA's service rules still apply.
Majority at 10.
This Is Incorrect.^ In fact, there Is (among many) one difference particularly
Important to this case: the former APA provision Included service requirements; the
revised APA provision does not.^
2 The legislature struck the entire extensive procedural framework from the section and
scattered it among more than a dozen new provisions. Laws of 1988, ch. 288, § 516; RCW
34.05.510-.598. The revised APA provision includes only substantive requirements for judicial
review, such as the burden of proof and the standard of review. RCW 34.05.570.
3 The majority concedes that RCW 34.05.570 contains no service requirements applicable to
this case. See majority at 10 ("RCW 34.05.570 contains only substantive provisions.").
However, it inexplicably maintains that the updated references are "substantively
unchanged." Id.
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
Contrary to the majority's assertion, the new APA's service requirements are
found in an entirely different provision of the APA—ROW 34.05.542. The ESA does
not cite or refer to .542 whatsoever. Thus, the majority's unsupported assertion that
the ESA's current reference to .570 Is substantlvely unchanged from the ESA's prior
reference to the former APA provision Is wrong.
In fact, both parties agree that the ESA's reference to .570 does not support
the contention that the APA's service requirements apply. This was made apparent
when, during oral argument, ESD argued for the first time that the code reviser made
an error when the reviser referred to ROW 34.05.570 Instead of ROW 34.05.542.
However, the reference to .570 was made correctly at the Instruction of the legislature
and not In error. See Laws of 1988, oh. 288, § 706; former ROW 50.32.120 (1988);
H.B. 1515, 50th Leg., Reg. Sess.(Wash. 1988).
II. The APA service requirements are sublect to the requirements of the ESA
The majority concedes that the language of the ESA "could suggest that It
applies" but nonetheless holds that the ESA does not apply to the service of a petition
for judicial review on ESD. Majority at 6. 1 would apply the plain meaning of the current
statutes and adhere to the specific legislative direction to liberally Interpret the ESA to
alleviate the privations of unemployment. Accordingly, I would hold that the ESA's
service requirements govern Stewart's petition for judicial review and therefore service
was complete upon mailing. Thus, Stewart's petition was timely.
If the meaning of a statute Is plain on Its face, the court must give effect to that
meaning In the context of "all that the Legislature has said In the statute and related
Stewart (Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
statutes which disclose legislative intent about the provision in question." Dep't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10-11, 43 P.Sd 4(2002).
The ESA and the APA both outline applicable service requirements. The
majority asserts that language in the ESA at ROW 50.32.090 requires us to apply the
APA's service requirements, found at ROW 34.05.542. ROW 50.32.090 states, "Any
decision of the commissioner involving a review of an appeal tribunal decision, in the
absence of a petition therefrom as provided in chapter 34.05 ROW, becomes final
thirty days after service." The majority asserts that the ESA's reference to the APA
implies that the APA's procedural rules apply here because "[cjhapter 34.05 ROW
clearly includes the procedural requirements of ROW 34.05.542." Majority at 10.
The flaw in this reasoning is that the APA itself, in ROW 34.05.542, declares
that service under the APA is "[sjubject to other requirements of this chapter or of
another statute." ROW 34.05.542. Therefore, application of the APA's service
requirements is subject to the requirements of other applicable statutes, and relevant
here are the service requirements of the ESA. The majority wholly ignores this
language.
Here, the ESA is "another statute" with applicable service requirements. The
service rules found in the ESA apply to the "appeal or petition from a determination,
redetermination, order and notice of assessment, appeals decision, or commissioner's
decision." RCW 50.32.025. This language is unambiguous. The statute limits the
actions it governs—an appeal or petition—and it limits the actions that may be
petitioned or appealed from—a determination, redetermination, order and notice of
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
assessment, appeals decision, or commissioner's decision. Id. But the statute does
not limit the decision-making body that may consider petitions and appeals. See id.Stewart appealed the commissioner's denial of her unemployment benefits to
the superior court. The plain language of the ESA encompasses Stewart's petition for
judicial review from the commissioner's decision because it is a "petition from a . . .
commissioner's decision." Id.Under the APA, therefore, service of Stewart's petition for review of a
commissioner's decision is "[sjubject to other requirements" of the ESA. Under the
ESA, a petitioner may serve ESD by mail and service is complete upon mailing. Id.Accordingly, Stewart completed service on ESD when she put her petition in the mail.
Thus, Stewart's service on ESD was timely.
CONCLUSION
The legislature passed the ESA to protect the unemployed worker, upon whom
the burden of involuntary unemployment "falls with crushing force." ROW 50.01.010.
However, this protection is meaningful only if the ESA provides the involuntarily
unemployed a well-defined process for seeking relief. Under the majority's holding,
the 30-day window begins to run when ESD puts the order in the mail, and petitioners
must now account for the time it will take their mailed petition to arrive at the agency.
Those who live far from Olympia will be doubly disadvantaged, as they must wait
longer for an order to arrive and must provide more time for their petition to reach
ESD. Unless petitioners use certified mail—which requires additional spending—they
will be faced with uncertainty as to when and whether their petition is received.
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
Individuals often represent themselves in negotiating unemployment
proceedings, without a lawyer to help navigate the process or interpret conflicting
language. It is for this reason that our court has been instructed to "liberally construe"
the statute to minimize the strain of involuntary unemployment. Id. The plain ianguage
of the current statutes and the legislature's instruction indicate that service of a petition
for judicial review on ESD is complete upon mailing. Therefore, I respectfully dissent
from the majority's interpretation of the ESA and the APA. I would reverse the order
of dismissal and remand for further proceedings.
Stewart(Cynthia) v. Empl. Sec. Dep't, No. 93759-1
Wiggins, J., dissenting
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