BILL REQ. #:  H-0482.1 

Read first time 01/22/2003.   Referred to Committee on State Government.

     AN ACT Relating to requiring state agencies to justify rules they adopt; amending RCW 34.05.360 and 34.05.570; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that the people of this state do not yield their sovereignty to the agencies that serve them, that one of the most fundamental principles of a free people is that citizens are presumed innocent of wrongdoing until proven guilty, and that due process requires that government bear the burden of establishing a person's guilt, not that the citizen bear the burden of proving his or her innocence. The legislature further finds that citizens generally lack the resources that state agencies have at their disposal to defend administrative rules that may have been adopted unlawfully and are therefore invalid because of agency noncompliance with proper administrative procedures, that may violate constitutional provisions, that may exceed the agency's statutory authority, or that may be arbitrary and capricious. The legislature further finds that in order to enhance the faith, credibility, and trust of the people in government, it is necessary and proper to place the burden upon state agencies, not individual citizens, to demonstrate that the administrative rules they adopt are lawful and valid.

Sec. 2   RCW 34.05.360 and 1988 c 288 s 311 are each amended to read as follows:
     The order of adoption by which each rule is adopted by an agency shall contain all of the following:
     (1) The signature of the governor;
     (2) The date the agency adopted the rule;
     (((2))) (3) A concise statement of the purpose of the rule;
     (((3))) (4) A reference to all rules repealed, amended, or suspended by the rule;
     (((4))) (5) A reference to the specific statutory or other authority authorizing adoption of the rule;
     (((5))) (6) Any findings required by any provision of law as a precondition to adoption or effectiveness of the rule; and
     (((6))) (7) The effective date of the rule if other than that specified in RCW 34.05.380(2).

Sec. 3   RCW 34.05.570 and 1995 c 403 s 802 are each amended to read as follows:
     (1) Generally. Except to the extent that this chapter or another statute provides otherwise:
     (a) Except as provided in subsection (2) of this section and except that an agency bears the burden of demonstrating that the agency action was authorized by law, the burden of demonstrating the invalidity of agency action is on the party asserting invalidity;
     (b) The validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken;
     (c) The court shall make a separate and distinct ruling on each material issue on which the court's decision is based; and
     (d) The court shall grant relief only if it determines that a person seeking judicial relief has been substantially prejudiced by the action complained of.
     (2) Review of rules. (a) A rule may be reviewed by petition for declaratory judgment filed pursuant to this subsection or in the context of any other review proceeding under this section. In an action challenging the validity of a rule, the agency shall be made a party to the proceeding.
     (b) The validity of any rule may be determined upon petition for a declaratory judgment addressed to the superior court of ((Thurston)) any county, when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair the legal rights or privileges of the petitioner. When the validity of a rule is challenged, after the petitioner has identified probable defects in the rule, the burden of going forward with the evidence is on the agency to establish validity. The declaratory judgment order may be entered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.
     (c) In a proceeding involving review of a rule, the court shall declare the rule invalid only if it finds that: The rule violates constitutional provisions; the rule exceeds the statutory authority of the agency; the rule was adopted without compliance with statutory rule-making procedures; or the rule is arbitrary and capricious.
     (3) Review of agency orders in adjudicative proceedings. The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that:
     (a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied;
     (b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;
     (c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;
     (d) The agency has erroneously interpreted or applied the law;
     (e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
     (f) The agency has not decided all issues requiring resolution by the agency;
     (g) A motion for disqualification under RCW 34.05.425 or 34.12.050 was made and was improperly denied or, if no motion was made, facts are shown to support the grant of such a motion that were not known and were not reasonably discoverable by the challenging party at the appropriate time for making such a motion;
     (h) The order is inconsistent with a rule of the agency unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for inconsistency; ((or))
     (i) The order is arbitrary or capricious; or
     (j) The order is based on a de facto rule.
     (4) Review of other agency action.
     (a) All agency action not reviewable under subsection (2) or (3) of this section shall be reviewed under this subsection.
     (b) A person whose rights are violated by an agency's failure to perform a duty that is required by law to be performed may file a petition for review pursuant to RCW 34.05.514, seeking an order pursuant to this subsection requiring performance. Within twenty days after service of the petition for review, the agency shall file and serve an answer to the petition, made in the same manner as an answer to a complaint in a civil action. The court may hear evidence, pursuant to RCW 34.05.562, on material issues of fact raised by the petition and answer.
     (c) Relief for persons aggrieved by the performance of an agency action, including the exercise of discretion, or an action under (b) of this subsection can be granted only if the court determines that the action is:
     (i) Unconstitutional;
     (ii) Outside the statutory authority of the agency or the authority conferred by a provision of law;
     (iii) Arbitrary or capricious; ((or))
     (iv) Taken by persons who were not properly constituted as agency officials lawfully entitled to take such action; or
     (v) Based on a de facto rule.