Diehl v. WESTERN WASH. GROWTH MANAGEMENT HEARINGS BOARD

103 P.3d 193
CourtWashington Supreme Court
DecidedDecember 16, 2004
Docket74768-7
StatusPublished
Cited by21 cases

This text of 103 P.3d 193 (Diehl v. WESTERN WASH. GROWTH MANAGEMENT HEARINGS BOARD) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diehl v. WESTERN WASH. GROWTH MANAGEMENT HEARINGS BOARD, 103 P.3d 193 (Wash. 2004).

Opinion

103 P.3d 193 (2004)
153 Wash.2d 207

John E. DIEHL, Petitioner,
v.
WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, et al., Respondents.

No. 74768-7.

Supreme Court of Washington, En Banc.

Argued September 30, 2004.
Decided December 16, 2004.

*194 John E. Diehl, Shelton, for Petitioner.

Darren John Nienaber, Mason County Pros. Attorney, Shelton, Martha Patricia Lantz, Office of Atty. Gen. Lic. & Admin. Law, Olympia, for Respondents.

Michael J. Robinson-Dorn, William Hamilton Rodgers, for Amicus Curiae Administrative and Environmental Law Professors and William R. Andersen.

William Berggren Collins, Olympia, for Amicus Curiae Attorney General.

IRELAND, J.

John Diehl, appearing pro se, seeks review of a published Court of Appeals decision affirming the dismissal of his petition for judicial review by Mason County Superior Court. Diehl v. W. Wash. Growth Mgmt. Hr'gs Bd., 118 Wash.App. 212, 75 P.3d 975 (2003). Diehl challenged the Growth Management Hearing Board's adoption of a comprehensive plan. The trial court dismissed Diehl's petition on the grounds that Diehl failed to comply with Civil Rule (CR) 4 when he served his petition for judicial review. Finding that the Administrative Procedure Act (APA) governs service and CR 4 does not apply in this case, we reverse the Court of Appeals and remand to the trial court for a hearing on the merits.

FACTS AND PROCEDURAL HISTORY

On April 30, 2001, Diehl filed his petition for review of a Western Washington Growth Management Hearings Board decision, Dawes et al. v. Mason County, No. 96-2-0023c, Western Washington Growth Management Hearings Board, pursuant to ch. RCW 34.05 and ch. RCW 36.70A.300(5). Paragraph 2 of the petition included the names and addresses of the Western Washington Growth Management Hearings Board and other parties to the agency proceedings, but did not include the attorney general's office. The last page of the petition included the following:

CERTIFICATE OF SERVICE
I certify that on April 30, 2000[sic], I mailed by First Class Mail, postage prepaid, or personally delivered a copy of this PETITION FOR JUDICIAL REVIEW to all parties or their attorneys.

Signed John E. Diehl

Following a July 11, 2001 status conference, on July 23, 2001, a Mason County Superior Court commissioner issued an order consolidating Diehl's petition with that of Mason County and the South 101 Corridor Group, and setting briefing schedule and argument. The order was mailed to counsel for all parties, including the assistant attorney general representing the hearings board. Mason County filed its response to Diehl's petition on October 8, 2001. The reply brief addressed the merits of the petition but did not raise any procedural defect.

At the hearing on the merits on the petition for review on April 29, 2002, Mason County made a prehearing oral motion to dismiss the petition for review on the grounds that the certificate of service was insufficient because it did not name the persons or agencies that had been served with the petition for review. The court gave Diehl until May 6, 2002 to file a written response to the oral motion, which he did, in the form of a letter to the trial court judge, with copies to the parties, including the Mason County Prosecutor and the assistant attorney general. The letter states, in part:

I am responding to Mason County's question about the service of my petition for review. As I certified at the time of service, the parties or their attorneys were served on April 30, 2001. (I do note a typographical error: my certificate of service inadvertently said "April 30, 2000").
Pursuant to RCW 34.05.542 and CR 5, I personally served Mason County Superior Court, Western Washington Growth Management Hearings Board, and the Mason *195 County Prosecutor's Office. The other parties listed in the petition were served by mail at their addresses as shown, as was the office of the attorney general.

The county filed a response to Diehl's letter, arguing that Diehl had failed to comply with either CR 4 or 5 and that his letter was not a certified statement, and therefore was insufficient to provide assurances of service. The county also raised the issue as to who performed the service of process, arguing that Diehl's service of his own petition violated CR 4(c).

On May 10, 2002, the trial court issued a memorandum opinion and order holding that RCW 34.05.542 sets out the time period requirements for filing and service of a petition for review, but that CR 4 is also applicable as to the manner of service. The court further held that Diehl's declaration of service did not comply with CR 4(g), that Diehl violated CR 4(c) by serving original process himself, and that failure to comply with the applicable rules for original service of process precluded the court from having jurisdiction to review the hearings board's final order. The trial court ordered that the petition for review would be dismissed on May 15, 2002 for failure of service, unless Diehl filed a declaration of service in the proper form pursuant to CR 4(g).

Diehl filed a motion for reconsideration on May 13, 2002, asserting that CR 4 is inapplicable because service of a petition for review is service of appellate process, not service of original process, but if CR 4 applies, the county waived its defense of insufficiency of process by failing to plead it before it filed its responsive pleadings. Mason County responded, asserting that the civil rules applied to special proceedings under CR 1 and CR 81, where not inconsistent with the APA; that the APA did not negate the service requirements of the civil rules; and that Diehl declined the opportunity given him by the court to supplement the record with appropriate proof of service. The trial court subsequently denied Diehl's motion to reconsider and granted the county's motion to dismiss Diehl's petition, pursuant to its May 10 memorandum opinion.

Following Diehl's timely appeal, Judge Seinfeld of Division Two of the Court of Appeals, affirmed the superior court, holding that the civil rules applied to Diehl's petition for review because service of process is an ancillary matter under RCW 34.05.510(2) and CR 4 is not inconsistent with the APA. The court further held that Diehl's certificate of service and subsequent letter to the trial court failed to comply with either the civil rules, the rules of appellate procedure, or with the APA because Diehl's certificate of service was not in affidavit form and did not state where he served the parties, and that Diehl failed to serve the county auditor pursuant to RCW 4.28.080(1), or the office of the attorney general.

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Cite This Page — Counsel Stack

Bluebook (online)
103 P.3d 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diehl-v-western-wash-growth-management-hearings-board-wash-2004.