Opinion
No. 66074-8-I
10-10-2011
CAROLYN BILAL, Appellant, v. STATE OF WASHINGTON OFFICE OF SUPERINTENDENT OF PUBLIC INSTRUCTION, Respondent.
UNPUBLISHED OPINION
Dwyer, C.J.—Carolyn Bilal appeals from the order of the superior court dismissing her petition for judicial review of an administrative decision. Because Bilal did not comply with the Administrative Procedure Act's requirement that the petition for judicial review be served on the agency within 30 days of the agency's final order, we affirm the superior court's ruling.
I
Bilal's teaching certificate was revoked by the Office of the Superintendent of Public Instruction (OSPI) in December 2009. Bilal appealed from the agency's order of revocation. In an order issued on June 28, 2010, an administrative law judge upheld the order revoking Bilal's teaching certificate.
On July 21, 2010, Bilal filed a petition for review of the administrative order in the King County Superior Court. She mailed a document detailing her legal arguments to OSPI's attorney of record, Assistant Attorney General Dierk Meierbachtol, on July 28, 2010. However, she did not serve a copy of the petition for review on OSPI or the Attorney General's Office until August 16, 2010—49 days after OSPI issued the revocation order. Because the Administrative Procedure Act (APA), chapter 34.05 RCW, mandates that a copy of the petition be served within 30 days, the superior court determined that Bilal had failed to comply with the statute's service requirements. Accordingly, the court dismissed Bilal's action.
Bilal appeals.
II
Bilal contends that the superior court erred when it dismissed her petition for judicial review. We disagree.
As a threshold matter, we note that this court's review is generally limited to those facts in the record that were considered by the trial court. Ripley v. Lanzer, 152 Wn. App. 296, 325 n.125, 215 P.3d 1020 (2009). "[C]ases on appeal are decided only from the record, and '[i]f the evidence is not in the record it will not be considered.'" Grobe v. Valley Garbage Serv., Inc., 87 Wn.2d 217, 228-29, 551 P.2d 748 (1976) (second alteration in original) (quoting State v. Wilson, 75 Wn.2d 329, 332, 450 P.2d 971 (1969)). Thus, this court will not consider additional factual materials submitted for the first time on appeal.
Here, Bilal sought to attach several exhibits to her reply brief in this court. The State moved for these materials to be stricken because they were not part of the record below. Because there is no evidence that these materials were ever before the superior court, we do not consider them.
We review de novo a superior court's order of dismissal for failure to comply with the service requirements of the APA. See, e.g., Ricketts v. Bd. of Accountancy, 111 Wn. App. 113, 116, 43 P.3d 548 (2002).
The APA generally provides the "exclusive means of judicial review of agency action." RCW 34.05.510. See also William R. Andersen, The 1988 Washington Administrative Procedure Act—An Introduction, 64 Wash. L. Rev. 781, 821 (1989). Through this statutory scheme, the legislature has specified who can seek judicial review, when review can be obtained, where it is available, how one gets it, and what it consists of once it is secured. Anderson, 64 Wash. L. Rev. at 821. To obtain judicial review under the APA, "[a] petition for judicial review of an order shall be filed with the court and served on the agency, the office of the attorney general, and all parties of record within thirty days after service of the final order." RCW 34.05.542(2). Both filing and service of the petition must be accomplished within the 30-day statutory period. City of Seattle v. Pub. Emp't Relations Comm'n, 116 Wn.2d 923, 926-27, 809 P.2d 1377 (1991). We have repeatedly emphasized that the APA's service requirements must be followed or a case will be dismissed. See, e.g., Sprint Spectrum, LP v. Dep't of Revenue, 156 Wn. App. 949, 952, 235 P.3d 849 (2010), review denied, 170 Wn.2d 1023 (2011); Muckleshoot Indian Tribe v. Dep't of Ecology, 112 Wn. App. 712, 728, 50 P.3d 668 (2002); Cheek v. Emp't Sec. Dep't, 107 Wn. App. 79, 84-85, 25 P.3d 481 (2001).
In general, the APA permits service by mail; service is deemed complete when the petition is deposited in the United States mail. RCW 34.05.010(19). Although RCW 34.05.542(4) requires hand-delivery of the petition to the agency, because RCW 34.05.542(6) stipulates that "service upon the attorney of record of any agency . . . constitutes service upon the agency," service on an agency may be accomplished by serving the attorney of record by mail. Ricketts, 111 Wn. App. at 118.
Here, the trial court correctly determined that Bilal did not comply with the APA's service requirements. The record establishes that the petition was not served on OSPI, its attorney of record, or the Attorney General's Office until August 16, 2010—49 days after the final order of revocation was issued. Thus, the 30-day statutory service deadline had expired, and the superior court was required to dismiss the petition.
Moreover, Bilal's contention that dismissal of the action was improper because she substantially complied with RCW 34.05.542(2) is without merit.Our courts have long held that substantial compliance is insufficient to meet the service requirements of the APA. See, e.g., Union Bay Pres. Coal. v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 620, 902 P.2d 1247 (1995); Diehl v. W. Wash. Growth Mgmt. Hearings Bd., 118 Wn. App. 212, 221, 75 P.3d 975 (2003). In Union Bay, the Supreme Court explained that the doctrine of substantial compliance cannot be used to trump the legislature's clear expression of intent as expressed through a well-defined statutory scheme. 127 Wn.2d at 620.
Bilal did not explicitly contend that she substantially complied with the APA's service requirements in the proceedings below. Ordinarily, we will not consider an issue that the trial court has had no opportunity to address. RAP 2.5. However, if an issue raised for the first time on appeal is arguably related to issues raised in the trial court, the appellate court may review it. Lunsford v. Saberhagen Holdings, Inc., 139 Wn. App. 334, 338, 160 P.3d 1089 (2007), aff'd, 166 Wn.2d 264, 208 P.3d 1092 (2009). Because Bilal asserted that service was proper in her response to the motion for dismissal, we determine that this issue is properly before us.
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The court's reasoning in Union Bay applies here. The APA explicitly requires that "[a] petition for judicial review" be filed and served. RCW 34.05.542(2). It was the legislature's intent that a single document—"a petition for judicial review"—be provided to the court and to the agency. This well-defined statutory scheme does not permit an appellant to file one document with the court while mailing a different document to the agency's attorney of record. Here, the document mailed to Assistant Attorney General Meierbachtol was different in both form and substance from the petition filed with the court. Accordingly, mailing this document to OSPI's attorney of record was not sufficient to meet the service requirements of the APA. The superior court correctly entered an order of dismissal.
Affirmed.
We concur: