BILL REQ. #:  H-0614.1 

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

     AN ACT Relating to ensuring that agency rules do not exceed their statutory authorization; amending RCW 34.05.570; and adding new sections to chapter 34.05 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 34.05 RCW to read as follows:
     (1) An agency may not adopt a proposed rule unless the legislature has had the opportunity to consider the proposed rule during a regular session or special legislative session as defined in Article II, section 12 of the state Constitution. For purposes of this section, the legislature has had the opportunity to consider a proposed rule after the adjournment of:
     (a) For proposed rules published in the state register on or before the first day of November in a calendar year, the regular session and any special legislative session in the calendar year after the year in which the rule was published; or
     (b) For proposed rules published in the state register after the first day of November in a calendar year, the regular session and any special legislative session in the second calendar year after the year in which the rule was published.
     (2) An agency seeking to adopt a proposed rule shall submit a copy of the rule, along with the summary and responses required by RCW 34.05.325(6), to the chief clerk of the house of representatives and the secretary of the senate no later than the fifteenth day of January after the convening of the regular session in the calendar year required by subsection (1) of this section.
     (3) This section does not apply to:
     (a) Emergency rules adopted in accordance with RCW 34.05.350; and
     (b) Rules adopted by the department of fish and wildlife establishing hunting and fishing seasons under RCW 77.12.047 and 77.12.150.
     (4) This section applies only to proposed rules that are published in the state register after the effective date of this act.

NEW SECTION.  Sec. 2   A new section is added to chapter 34.05 RCW to read as follows:
     When delegating authority to an agency through legislation, the legislature, unless it specifically states otherwise, limits its delegation of authority to:
     (1) The minimum delegation necessary to administer the legislation's clear and unambiguous directives; and
     (2) The administration of circumstances and behaviors foreseeable at the time of the legislation's enactment.

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) The burden of demonstrating the invalidity of agency action is on the party asserting invalidity except that the agency bears the burden of demonstrating that an agency action was authorized by law;
     (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. 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. For purposes of this subsection, in determining whether a rule exceeds the agency's statutory authority, the court must also consider whether the rule exceeds the limited delegation under section 2 of this act.
     (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.
     (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.