H 1201

H‑1201.1 _____________________________________________

HOUSE BILL 1969

_____________________________________________

State of Washington 57th Legislature 2001 Regular Session

By Representatives Lambert, Boldt, Dunn and Mulliken

Read first time 02/12/2001. Referred to Committee on State Government.

_1 AN ACT Relating to legislative oversight of agency rules; and

_2 amending RCW 34.05.570, 34.05.610, 34.05.630, 34.05.640, and

_3 34.05.660.

_4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_5 Sec. 1. RCW 34.05.570 and 1995 c 403 s 802 are each amended to

_6 read as follows:

_7 (1) Generally. Except to the extent that this chapter or another

_8 statute provides otherwise:

_9 (a) The burden of demonstrating the invalidity of agency action

10 is on the party asserting invalidity;

11 (b) The validity of agency action shall be determined in

12 accordance with the standards of review provided in this section,

13 as applied to the agency action at the time it was taken;

14 (c) The court shall make a separate and distinct ruling on each

15 material issue on which the court's decision is based; and

16 (d) The court shall grant relief only if it determines that a

17 person seeking judicial relief has been substantially prejudiced

18 by the action complained of.

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_1 (2) Review of rules. (a) A rule may be reviewed by petition for

_2 declaratory judgment filed pursuant to this subsection or in the

_3 context of any other review proceeding under this section. In an

_4 action challenging the validity of a rule, the agency shall be

_5 made a party to the proceeding.

_6 (b) The validity of any rule may be determined upon petition

_7 for a declaratory judgment addressed to the superior court of

_8 Thurston county, when it appears that the rule, or its threatened

_9 application, interferes with or impairs or immediately threatens

10 to interfere with or impair the legal rights or privileges of the

11 petitioner. The declaratory judgment order may be entered whether

12 or not the petitioner has first requested the agency to pass upon

13 the validity of the rule in question.

14 (c) In a proceeding involving review of a rule, the court shall

15 declare the rule invalid only if it finds that: The rule violates

16 constitutional provisions; the rule exceeds the statutory

17 authority of the agency; the rule was adopted without compliance

18 with statutory rule-making procedures; or the rule is arbitrary

19 and capricious.

20 (d) If the rules review committee has made an adverse finding

21 under RCW 34.05.640(2) (a) or (b) on the rule in question, the

22 agency has the burden of demonstrating the validity of the rule,

23 notwithstanding subsection (1)(a) of this section.

24 (3) Review of agency orders in adjudicative proceedings. The

25 court shall grant relief from an agency order in an adjudicative

26 proceeding only if it determines that:

27 (a) The order, or the statute or rule on which the order is

28 based, is in violation of constitutional provisions on its face or

29 as applied;

30 (b) The order is outside the statutory authority or

31 jurisdiction of the agency conferred by any provision of law;

32 (c) The agency has engaged in unlawful procedure or decision-

33 making process, or has failed to follow a prescribed procedure;

34 (d) The agency has erroneously interpreted or applied the law;

35 (e) The order is not supported by evidence that is substantial

36 when viewed in light of the whole record before the court, which

37 includes the agency record for judicial review, supplemented by

38 any additional evidence received by the court under this chapter;

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_1 (f) The agency has not decided all issues requiring resolution

_2 by the agency;

_3 (g) A motion for disqualification under RCW 34.05.425 or

_4 34.12.050 was made and was improperly denied or, if no motion was

_5 made, facts are shown to support the grant of such a motion that

_6 were not known and were not reasonably discoverable by the

_7 challenging party at the appropriate time for making such a

_8 motion;

_9 (h) The order is inconsistent with a rule of the agency unless

10 the agency explains the inconsistency by stating facts and reasons

11 to demonstrate a rational basis for inconsistency; or

12 (i) The order is arbitrary or capricious.

13 (4) Review of other agency action.

14 (a) All agency action not reviewable under subsection (2) or

15 (3) of this section shall be reviewed under this subsection.

16 (b) A person whose rights are violated by an agency's failure

17 to perform a duty that is required by law to be performed may file

18 a petition for review pursuant to RCW 34.05.514, seeking an order

19 pursuant to this subsection requiring performance. Within twenty

20 days after service of the petition for review, the agency shall

21 file and serve an answer to the petition, made in the same manner

22 as an answer to a complaint in a civil action. The court may hear

23 evidence, pursuant to RCW 34.05.562, on material issues of fact

24 raised by the petition and answer.

25 (c) Relief for persons aggrieved by the performance of an

26 agency action, including the exercise of discretion, or an action

27 under (b) of this subsection can be granted only if the court

28 determines that the action is:

29 (i) Unconstitutional;

30 (ii) Outside the statutory authority of the agency or the

31 authority conferred by a provision of law;

32 (iii) Arbitrary or capricious; or

33 (iv) Taken by persons who were not properly constituted as

34 agency officials lawfully entitled to take such action.

35 Sec. 2. RCW 34.05.610 and 1998 c 280 s 9 are each amended to read

36 as follows:

37 (1) There is hereby created a joint administrative rules review

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_1 committee which shall be a bipartisan committee consisting of the

_2 lieutenant governor, four senators, and four representatives from

_3 the state legislature. The lieutenant governor shall serve as a

_4 nonvoting committee member unless there is a tie vote among the

_5 members voting on an issue, in which case the lieutenant governor

_6 may vote to break the tie. The senate members of the committee

_7 shall be appointed by the president of the senate, and the house

_8 members of the committee shall be appointed by the speaker of the

_9 house. Not more than two members from each house may be from the

10 same political party. The appointing authorities shall also appoint

11 one alternate member from each caucus of each house. All

12 appointments to the committee are subject to approval by the

13 caucuses to which the appointed members belong.

14 (2) Members and alternates shall be appointed as soon as

15 possible after the legislature convenes in regular session in an

16 odd-numbered year, and their terms shall extend until their

17 successors are appointed and qualified at the next regular session

18 of the legislature in an odd-numbered year or until such persons

19 no longer serve in the legislature, whichever occurs first.

20 Members and alternates may be reappointed to the committee.

21 (3) On or about January 1, 1999, the president of the senate

22 shall appoint the chairperson and the vice chairperson from among

23 the committee membership. The speaker of the house shall appoint

24 the chairperson and the vice chairperson in alternating even-

25 numbered years beginning in the year 2000 from among the committee

26 membership. The secretary of the senate shall appoint the

27 chairperson and the vice chairperson in the alternating even-

28 numbered years beginning in the year 2002 from among the committee

29 membership. Such appointments shall be made in January of each even-

30 numbered year as soon as possible after a legislative session

31 convenes.

32 (4) The chairperson of the committee shall cause all meeting

33 notices and committee documents to be sent to the members and

34 alternates. A vacancy shall be filled by appointment of a

35 legislator from the same political party as the original

36 appointment. The appropriate appointing authority shall make the

37 appointment within thirty days of the vacancy occurring.

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_1 Sec. 3. RCW 34.05.630 and 1998 c 21 s 1 are each amended to read

_2 as follows:

_3 (1) All rules required to be filed pursuant to RCW 34.05.380,

_4 and emergency rules adopted pursuant to RCW 34.05.350, are subject

_5 to selective review by the committee.

_6 (2) All agency policy and interpretive statements, guidelines,

_7 and documents that are of general applicability, or their

_8 equivalents, are subject to selective review by the committee to

_9 determine whether or not a statement, guideline, or document that

10 is of general applicability, or its equivalent, is being used as a

11 rule that has not been adopted in accordance with all applicable

12 provisions of law.

13 (3) If the rules review committee finds by a majority vote of

14 its members: (a) That an existing rule is not within the intent of

15 the legislature as expressed by the statute which the rule

16 implements, (b) that the rule has not been adopted in accordance

17 with all applicable provisions of law, or (c) that an agency is

18 using a policy or interpretive statement in place of a rule, the

19 agency affected shall be notified of such finding and the reasons

20 therefor. Within thirty days of the receipt of the rules review

21 committee's notice, the agency shall file notice of a hearing on

22 the rules review committee's finding with the code reviser and

23 mail notice to all persons who have made timely request of the

24 agency for advance notice of its rule-making proceedings as

25 provided in RCW 34.05.320. The agency's notice shall include the

26 rules review committee's findings and reasons therefor, and shall

27 be published in the Washington state register in accordance with

28 the provisions of chapter 34.08 RCW.

29 (4) The agency shall conduct the hearing within ninety days of

30 receiving the rules review committee's finding. The agency shall

31 consider fully all written and oral submissions regarding (a)

32 whether the rule in question is within the intent of the

33 legislature as expressed by the statute which the rule implements,

34 (b) whether the rule was adopted in accordance with all applicable

35 provisions of law, and (c) whether the agency is using a policy or

36 interpretive statement, guideline, or document that is of general

37 applicability, or its equivalent, in place of a rule.

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_1 Sec. 4. RCW 34.05.640 and 1998 c 21 s 2 are each amended to read

_2 as follows:

_3 (1) Within seven days of an agency hearing held after

_4 notification of the agency by the rules review committee pursuant

_5 to RCW 34.05.620 or 34.05.630, the affected agency shall notify

_6 the committee of its intended action on a proposed or existing

_7 rule to which the committee objected or on a committee finding of

_8 the agency's failure to adopt rules.

_9 (2) If the rules review committee finds by a majority vote of

10 its members: (a) That the proposed or existing rule in question

11 will not be modified, amended, withdrawn, or repealed by the

12 agency so as to conform with the intent of the legislature, (b)

13 that an existing rule was not adopted in accordance with all

14 applicable provisions of law, or (c) that the agency will not

15 replace the policy or interpretive statement, guideline, or

16 document that is of general applicability, or its equivalent, with

17 a rule, the rules review committee may, within ((~~thirty~~)) one

18 hundred twenty days from notification by the agency of its

19 intended action, file with the code reviser notice of its

20 objections together with a concise statement of the reasons

21 therefor. Such notice and statement shall also be provided to the

22 agency by the rules review committee.

23 (3)(a) If the rules review committee makes an adverse finding

24 regarding an existing rule under subsection (2)(a) or (b) of this

25 section, the committee may, by a majority vote of its members,

26 recommend suspension of the rule. Within seven days of such vote

27 the committee shall transmit to the appropriate standing

28 committees of the legislature, the governor, the code reviser, and

29 the agency written notice of its objection and recommended

30 suspension and the concise reasons therefor. Within thirty days of

31 receipt of the notice, the governor shall transmit to the

32 committee, the code reviser, and the agency written approval or

33 disapproval of the recommended suspension. If the suspension is

34 approved by the governor, it is effective from the date of that

35 approval and continues until ninety days after the expiration of

36 the next regular legislative session.

37 (b) If the rules review committee makes an adverse finding

38 regarding a policy or interpretive statement, guideline, or

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_1 document that is of general applicability, or its equivalent,

_2 under subsection (2)(c) of this section, the committee may, by a

_3 majority vote of its members, advise the governor of its finding.

_4 (4) The code reviser shall publish transmittals from the rules

_5 review committee or the governor issued pursuant to subsection (2)

_6 or (3) of this section in the Washington state register and shall

_7 publish in the next supplement and compilation of the Washington

_8 Administrative Code a reference to the committee's objection or

_9 recommended suspension and the governor's action on it and to the

10 issue of the Washington state register in which the full text

11 thereof appears.

12 (5) The reference shall be removed from a rule published in the

13 Washington Administrative Code if a subsequent adjudicatory

14 proceeding determines that the rule is within the intent of the

15 legislature or was adopted in accordance with all applicable laws,

16 whichever was the objection of the rules review committee.

17 Sec. 5. RCW 34.05.660 and 1988 c 288 s 606 are each amended to

18 read as follows:

19 (1) Except as provided in subsection (2) of this section, it is

20 the express policy of the legislature that establishment of

21 procedures for review of administrative rules by the legislature

22 and the notice of objection required by RCW 34.05.630((~~(2)~~)) (3)

23 and 34.05.640(2) in no way serves to establish a presumption as to

24 the legality or constitutionality of a rule in any subsequent

25 judicial proceedings interpreting such rules.

26 (2) If the joint administrative rules review committee

27 recommends to the governor that an existing rule be suspended

28 because it does not conform with the intent of the legislature or

29 was not adopted in accordance with all applicable provisions of

30 law, the recommendation establishes a rebuttable presumption in a

31 proceeding challenging the validity of the rule that the rule is

32 invalid. The burden of demonstrating the validity of the rule is

33 then on the adopting agency.

‑‑‑ END ‑‑‑

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