Cheek v. Employment Security Department

107 Wash. App. 79
CourtCourt of Appeals of Washington
DecidedJune 21, 2001
DocketNo. 19602-0-III
StatusPublished
Cited by10 cases

This text of 107 Wash. App. 79 (Cheek v. Employment Security Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheek v. Employment Security Department, 107 Wash. App. 79 (Wash. Ct. App. 2001).

Opinion

Schultheis, J.

Shannon Cheek applied for unemployment benefits with the Employment Security Department for the State of Washington after she quit her job in order to [81]*81avoid a domestic violence situation. The benefits were denied and the denial was affirmed by the Office of Administrative Hearings as well as the Department Commissioner. Ms. Cheek filed a petition for review of the Commissioner’s decision in the Spokane County Superior Court but it was dismissed for lack of jurisdiction. Ms. Cheek appeals the dismissal and requests attorney fees and costs. Because the trial court properly dismissed the case for lack of jurisdiction, we affirm; Ms. Cheek’s request for attorney fees is denied.

FACTS

Ms. Cheek worked as a respite worker for Community Mental Health Services (CMHS) in Oak Harbor, Washington, from April 5, 1999 until August 16, 1999. She was qualified for the work and enjoyed it. Her employer was complimentary regarding Ms. Cheek’s job performance. In July 1999 Ms. Cheek was granted a leave of absence from CMHS due to an ongoing domestic violence situation with her ex-boyfriend. After about one month Ms. Cheek determined that it was no longer safe for her to live and work in Oak Harbor. As a result, she quit her job at CMHS and filed a claim for unemployment benefits with the Department, but the claim was denied on November 5. She filed a timely appeal of the denial and a full hearing on the matter was held in Spokane, Washington, on December 28, before an administrative law judge (ALJ) at the Office of Administrative Hearings.

In a written decision mailed on December 30, 1999, the ALJ affirmed the denial of benefits because it determined Ms. Cheek’s decision to leave CMHS was due to the domestic violence situation, which was personal to her. The unemployment statute directs that benefits may be paid only if an applicant’s voluntary termination from employment is for good cause, which must be work related. RCW 50.20.050. Although the ALJ found that Ms. Cheek had personally compelling reasons to leave the Oak Harbor [82]*82area, the reasons did not constitute good cause under the statute.

Ms. Cheek appealed the ALJ’s decision. The Department Commissioner affirmed the decision on March 3, 2000. Ms. Cheek filed a petition for review in the Spokane County Superior Court on April 3. A copy of the petition was hand delivered to the Attorney General’s Office located in Spokane. However, the Department did not receive the petition until April 7, which was four days late pursuant to RCW 34.05.542 (which sets forth the statutory requirements of service under the Administrative Procedure Act (APA)). For this reason, the Department filed a motion to dismiss the petition. Ms. Cheek argues that service on the Office of the Attorney General constitutes service on the Department since the Attorney General is the attorney of record for the Employment Security Department. RCW 43.10.040. The trial court disagreed with Ms. Cheek’s contention and granted the Department’s motion to dismiss, finding the Department had not been timely served with the petition for review as required by RCW 34.05.542. This timely notice of appeal resulted.

ANALYSIS

Ms. Cheek contends the trial court erred when it dismissed her appeal of the Commissioner’s decision affirming denial of employment benefits based on a lack of jurisdiction. She asks this court to determine that the Commissioner’s decision was incorrect and reverse the court’s dismissal of her appeal. However, before we consider the merits of her claim we must determine whether Ms. Cheek timely served the Department with her petition for review of the Commissioner’s decision.

Ms. Cheek argues that the Office of the Attorney General is per se the attorney of record for the Department pursuant to RCW 43.10.040. As a result, she claims that timely service on the Office of the Attorney General constitutes timely service on the Department pursuant to RCW [83]*8334.05.542(6).1 She also argues that the Department should be estopped from raising the issue of subject matter jurisdiction because it was the Department’s letter, which accompanied the Commissioner’s decision, that led her to serve the petition for review on the Attorney General’s Office in the first place. Her arguments are without merit.

An appeal from an administrative tribunal invokes the appellate, rather than the general, jurisdiction of the superior court. Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 555, 958 P.2d 962 (1998). Acting in its appellate capacity, the superior court is of limited statutory jurisdiction, and a party seeking to properly invoke its jurisdiction must meet all statutory procedural requirements. Id. The trial court does not acquire subject matter jurisdiction over an appeal from an agency decision unless the appealing party files the petition for review in superior court and serves the petition on all parties. City of Seattle v. Pub. Employment Relations Comm’n, 116 Wn.2d 923, 926, 809 P.2d 1377 (1991).

Review of an agency decision under the APA requires that a petition for judicial review of an agency order must be filed with the court and served on the agency that issued the decision, here the Employment Security Department. RCW 34.05.542(2). The statute also requires that the petition be served on “the office of the attorney general, and all parties of record within thirty days after service of the final order.” Id. Furthermore, RCW 34.05.542(4) explains that: “Service of the petition on the agency shall be by delivery of a copy of the petition to the office of the director, or other chief administrative officer or chairperson of the agency, at the principal office of the agency.” The statute is straightforward. Ms. Cheek was required to serve her petition for review on the Department and the attorney general and all parties of record.

However, in 1998 the Legislature added the aforemen[84]*84tioned subsection (6) to RCW 34.05.542, which according to Ms. Cheek, supports her arguments on appeal. She is incorrect.

The APA does not define the term “attorney of record,” which is an apparent oversight that should be addressed by the Legislature. Accordingly, we look to the ordinary dictionary meaning of the phrase. See W. Telepage, Inc. v. City of Tacoma Dep’t of Fin., 140 Wn.2d 599, 609,

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107 Wash. App. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheek-v-employment-security-department-washctapp-2001.