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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, WASHINGTON No. 84009-6-I STATE PERSONNEL RESOURCES BOARD, DIVISION ONE
Respondent, PUBLISHED OPINION v.
JULIA A. BARNETT, M.D.,
Appellant.
DÍAZ, J. — The Washington State Department of Corrections (“DOC”)
terminated Appellant, Julia Barnett, M.D., in April 2019 from her position as staff
physician and medical director of the Monroe Correctional Complex (“MCC”) for
“incompetence.” The Personnel Resources Board (“PRB”) upheld the decision
following a three-day hearing in October 2020. The appellant sought a Writ of
Review and/or Writ of Certiorari (the “Writs”) from the Snohomish County Superior
Court in October 2021. That court declined to issue the Writs, finding that the PRB
had acted neither illegally nor exceeded its authority and that there was another
potential remedy at law available to Barnett. The superior court made such For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/2
findings without reviewing the entire administrative record, as the agencies had
refused to produce it. Our Supreme Court denied direct review and transferred the
appeal to this court in May.
In her appeal, Barnett asserts that the superior court erred by denying the
Writs without demanding and reviewing the entire administrative record and
without holding a hearing. Without such process, Barnett asserts that trial courts
cannot determine whether the discharge and PRB’s review exceeded its
jurisdiction or otherwise was unlawful.
We affirm the superior court’s denial of the Writs because, as preliminary
matters, (1) the PRB was not exercising a “judicial function” that would subject it
to a statutory writ of review by a superior court, and (2) the trial court did not abuse
its significant discretion when finding that there were other legal options available
to Barnett, which defeat the need for a constitutional writ. Further, there is no
authority holding that a superior court must receive and review the entire record or
hold a hearing before assessing the preliminary aspects of either writ. We do not
reach the merits of the dispute or other issues the parties present.
I. FACTS
Barnett was a staff physician and the facility medical director at the MCC,
which is within the DOC, from March 2017 until her termination in April 2019. In
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No. 84009-6-I/3
support of her termination, DOC conducted an investigation and produced a report,
which concluded that Barnett:
[F]ailed to exercise sound clinical judgement; provide adequate medical care to patients; advocate for patients; make timely and necessary arrangements for adequate medical care to be provided to patients outside of MCC; ensure that providers whom [Barnett] clinically supervised were providing timely, adequate medical care, evaluations or assessments; ensure that sufficient documentation and charting was occurring so that the patient’s condition could be adequately monitored; and communicate significant changes in a patient’s condition to other critical medical providers.
In short, in Barnett’s words, she was discharged by DOC for “alleged
incompetence.” DOC claimed that these actions constituted misconduct and had
violated the DOC’s Health Plan, multiple DOC policies, and her stated job
expectations, including her formal position description and performance
development plan. The investigative report further detailed the resulting suffering
and harm to six specific patients. DOC found just cause for termination.
Barnett appealed her termination to the PRB in May 2019, alleging multiple
violations of her procedural and substantive rights. A three-day hearing was held
in October 2020, during which the PRB received over 1,200 pages of exhibits and
heard testimony from all witnesses offered by both parties. In September 2021,
the PRB affirmed the termination decision in a written decision. Such a process is
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/4
contemplated by the State’s Civil Service law, RCW 41.06.170(2), which states in
pertinent part:
Any employee who is . . . dismissed . . . shall have the right to appeal, either individually or through his or her authorized representative, not later than thirty days after the effective date of such action to the Washington personnel resources board. The employee shall be furnished with specified charges in writing when a . . . dismissal . . . action is taken. Such appeal shall be in writing.
On October 25, 2021, Barnett filed a Petition and Application for Writ of
Review or for Constitutional Writ of Certiorari in Snohomish County Superior Court,
naming both DOC and the PRB as respondents. The Petition alleged that the PRB
committed five types of evidentiary, procedural, and legal errors, which both
respondents contested. The superior court denied issuance of either a statutory
or constitutional writ of review after its review of a substantial record, including four
briefs and multiple declarations, totaling several hundred pages. The court found
that the PRB did not act illegally or exceed its authority and that other remedies at
law were available to Barnett, while expressing uncertainty about whether the PRB
was exercising a judicial function. Barnett sought review by the Supreme Court.
Review was denied, and the case transferred to this court in May 2022.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/5
II. ANALYSIS
A. Statutory Writ of Review Under RCW 7.16.040
There are two classes of writs: (1) the constitutional or common law writ and
(2) the statutory writ. Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 767,
261 P.3d 145 (2011). Barnett sought either.
As an example of the latter, RCW 7.16.040 provides that:
A writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.
In other words, to obtain a statutory writ of review, “the petitioner must show
(1) that an inferior tribunal (2) exercising judicial functions (3) exceeded its
jurisdiction or acted illegally, and (4) there is no adequate remedy at law.” Wash.
Pub. Emps. Ass’n v. Wash. Pers. Res. Bd., 91 Wn. App. 640, 646, 959 P.2d 143
(1998) (citing Raynes v. City of Leavenworth, 118 Wn.2d 237, 244, 821 P.2d 1204
(1992)). If any of these elements is absent, there is no basis for superior court
review. Clark County PUD v. Wilkinson, et al., 139 Wn.2d 840, 845, 991 P.2d 1161
(2000) (citing Bridle Trails Cmty. Club v. City of Bellevue, 45 Wn. App. 248, 250,
724 P.2d 1110 (1986)).
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No. 84009-6-I/6
Review of a superior court’s decision denying a statutory writ of review is
de novo. City of Seattle v. Holifield, 170 Wn.2d 230, 240, 240 P.3d 1162 (2010)
(citing Commanda v. Cary, 143 Wn.2d 651, 654, 23 P.3d 1086 (2001)). A statutory
writ is an extraordinary remedy granted by statute, which should be used
“sparingly.” Id. at 239-40 (internal quotations and citations omitted). “Although the
writ [of review] may be convenient, no authority supports its use as a matter of
expediency.” Dep’t of Lab. & Indus. v. Bd. of Indus. Ins. Appeals, 186 Wn. App.
240, 246–47, 347 P.3d 63 (2015) (internal quotations omitted) (citing Commanda,
143 Wn.2d at 656). Courts should be wary of “broaden[ing] the scope of the
statutory writ so as to be generally available rather than to be an extraordinary
remedy as consistently held.” Id. at 247.
Barnett glides past the first two elements to argue that the superior court
could not assess the third and fourth elements without the full administrative
record. Specifically, she argues that without the record the court could “not make
that threshold ruling on the legality or illegality of the Board’s actions. Nor could it
determine what subsequent litigation Dr. Barnett could still bring.” For Barnett, the
“sole issue on appeal” is the presence or absence of the record. That framing,
whereby a court skips over the first two elements, simply is not the law.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/7
There is no dispute that the PRB is a tribunal (thus satisfying the first
element), but the respondents assert that, regardless of the record before it, the
PRB is not exercising a judicial function. We agree.
To determine whether an agency was exercising judicial functions, courts
weigh the following factors: (1) whether a court has been charged with making the
agency’s decision; (2) whether the decision is the type that courts historically have
made; (3) whether the decision involved the application of law to fact; and (4)
whether the decision resembled the ordinary business of courts as opposed to
legislators or administrators. Wash. Pub. Emps. Ass’n, 91 Wn. App. at 646.
Our Supreme Court and this court have held on multiple occasions that the
PRB’s decision that DOC properly applied its policies and procedures in a
dismissal review is not a “judicial function” under the above criteria. Namely, our
Supreme Court held that “the function of the [PRB], in hearing and determining
appeals from employees who have been dismissed for cause by their employing
agency is nonjudicial in nature.” State ex rel. Hood v. Pers. Bd., 82 Wn.2d 396,
401, 511 P.2d 52 (1973) (emphasis added), overruled on other grounds by Pierce
County Sheriff v. Civ. Serv. Comm’n of Pierce County, 98 Wn.2d 690, 658 P.2d
648 (1983); Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 221, 643 P.2d 426
(1982). The court explained that:
Prior to creation of the [PRB], state employees had no express employment rights which were within the power of the courts to
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/8
protect. Personnel administration was left exclusively to the discretion of management. Thus, there were no functions which the courts had or even could have performed prior to the creation of the [PRB].
Id.
The Supreme Court later further explained that, when an agency did not
have to apply existing law to present facts to make its determination and when the
hearing more closely resembled the business of administrators than that of courts,
the actions are then not “functionally similar enough to court proceedings to
warrant judicial review.” Raynes, 118 Wn.2d at 244-45 (citation omitted). Indeed,
since nearly the inception of the Civil Service Laws, the Supreme Court has
recognized that “personnel policy and management . . . is essentially an
administrative or executive function rather than a function historically or
traditionally resting with the judicial branch of government.” Gogerty v. Dep’t of
Insts., 71 Wn.2d 1, 5, 426 P.2d 476 (1967).
Similarly, this court in Jones v. Pers. Res. Bd., 134 Wn. App. 560, 572, 140
P.3d 636 (2006), held that the “nature of the issue in dispute ultimately controls in
determining whether courts historically performed the function in question.” (citing
Wash. Pub. Emps. Ass’n, 91 Wn. App. at 649–50). And this Court further held that
PRB’s resolution of an employee’s grievance about a performance evaluation –
even in the context of an adversarial proceeding involving a collective bargaining
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No. 84009-6-I/9
agreement – is not a judicial action precisely because it “was essentially a
personnel matter.” Id.
Finally, as a matter of efficiency, our Supreme Court explained that such
decision-making is not a judicial function because the PRB in a disciplinary appeal
is free to use its personnel expertise and its “power to modify, as well as to reverse
or affirm the decision of the employing agency. Any other approach would result in
an inflexibility inconsistent with the orderly, swift and just disposition of merit
system appeals.” Dunaway v. Dep’t of Soc. & Health Servs., 90 Wn.2d 112, 115,
579 P.2d 362 (1978) (citations omitted).
Here, “the nature of the dispute” is nothing other than a personnel
administration or management matter. In other words, the PRB was not in the
business of applying laws to facts, but rather to assess the performance of DOC’s
employee by applying state and agency policies and procedures as guided by its
internal rules to the facts: the Health Plan, DOC policy documents, and her
individualized position description and performance development plan. In such
circumstances, the courts of Washington should resist playing the role of a super
personnel department.
Barnett relies in passing on this Court’s holding in Wash. Pub. Emps. Ass’n,
91 Wn. App. at 649, that, in some narrow instances, the PRB does exercise a
judicial function. However, in that case, the Washington Public Employees
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/10
Association (“WPEA”) petitioned for statutory or constitutional writs, after the PRB
dismissed WPEA’s unfair labor practices complaint against the Office of Financial
Management, which had negotiated and then disapproved state employee
salaries, allegedly in violation of notice and other procedural requirements. Wash.
Pub. Emps. Ass’n, 91 Wn. App. at 644-45. This court found that, in that context,
the PRB was exercising a judicial function because courts had historically
considered such petitions and the PRB hearing resembled the ordinary business
of courts. Id. at 647-49. This court specifically distinguished the nature of that
dispute from the personnel and policy management dispute in Hood. Id. at 649-
50. Again, this case falls in the line of cases with Hood, which remains good law
on this point. 1
For these reasons, we do not reach any additional issue, including:
1. Whether the legislative directive or statutory scheme for appeals
from adverse actions against public employees would entirely preclude any further
process. Namely, pursuant to RCW 41.06.170(2), “Decisions of the Washington
personnel resources board on appeals filed after June 30, 2005, shall be final and
not subject to further appeal.” (emphasis added). Our Supreme Court has
1 We also conclude that Barnett cannot establish that there is no adequate
remedy at law, which showing is required for issuance of both a statutory writ and constitutional writ, which is discussed below in the analysis of the constitutional writ.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84009-6-I/11
confronted an analogous “conundrum,” namely, “how to reconcile the legislature’s
grant of review by statutory writ, RCW 7.16.040, with the legislature’s denial of”
appeal rights in another statute, here the final sentence of RCW 41.06.170(2).
Vinson, 172 Wn.2d at 768. While the Supreme Court held that a statutory writ of
review “is clearly not meant to be a substitute for an appeal and cannot be used to
circumvent the legislature’s clear directive,” id., we need not resolve this
inconsistency, if any, at this time on this record. Indeed, neither party has fully
briefed the issue. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (“This
court will not consider claims insufficiently argued by the parties.”).
2. Whether the PRB exceeded its jurisdiction or acted illegally on the
merits, which Barnett does not ask us to reach in any event.
B. Constitutional Writ of Certiorari
“A constitutional right to judicial review still exists notwithstanding [a
litigant’s] inability to appeal” or obtain a statutory writ. Vinson, 172 Wn.2d at 768
(citing CONST. art. IV, § 6 & Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215,
643 P.2d 426 (1982)). However, the constitutional writ of certiorari embodied in
article IV, section 6 (amendment 87) of the Washington Constitution “will rarely be
granted where [direct appeal or a statutory writ are] available but [have] not been
utilized by the appellant and no good cause for the lack of such utilization is
shown.” Bridle Trails, 45 Wn. App. at 253. Here, neither of those types of actions
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No. 84009-6-I/12
is still available, so the question of whether a constitutional writ is appropriate is
ripe.
The most “fundamental” purpose of such a writ is “to enable a court of
review to determine whether the proceedings below were within the lower tribunal’s
jurisdiction and authority.” Saldin Sec., Inc. v. Snohomish County, 134 Wn.2d 288,
292, 949 P.2d 370 (1998) (citing Bridle Trails, 45 Wn. App. at 252–53). Thus, a
court will accept review only if the petitioner can allege facts that, if verified, would
establish the lower tribunal’s decision was “illegal or arbitrary and capricious.”
Saldin, 134 Wn.2d at 292 (citations omitted). However, crucially, this form of
review lies “always” within the trial court’s broad discretion. Bridle Trails, 45 Wn.
App. at 252. As this Court explained in Bridle Trails:
The grant of the common law writ . . . cannot be mandated by anyone, including a higher court such as this. Nor can the superior court ever lack the jurisdiction to entertain application for a writ alleging acts in excess of jurisdiction by an inferior body, whether exercising judicial functions or administrative ones. This jurisdiction is inherent in the court, as recognized in the constitution. The superior court may in its discretion refuse to exercise its inherent powers of review so long as tenable reasons are given to support that discretionary ruling.
Id. (emphasis added). Not even the Legislature may intrude by statute on this
constitutional power. North Bend Stage Line, Inc. v. Dep’t of Pub. Works, 170
Wash. 217, 227-28, 16 P.2d 206 (1932).
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No. 84009-6-I/13
For these reasons, a superior court’s decision denying a constitutional writ
of certiorari is reviewed under an abuse of discretion standard. Newman v.
Veterinary Bd. of Governors, 156 Wn. App. 132, 142, 231 P.3d 840 (2010) (citing
Bridle Trails, 45 Wn. App. at 252). A court abuses its discretion only when its
decision is manifestly unreasonable, or exercised on untenable grounds or for
untenable reasons. Gildon v. Simon Prop. Grp., 158 Wn.2d 483, 494, 145 P.3d
1196 (2006) (citations omitted).
Here, the trial court denied the application for a constitutional writ, finding
that there is “another potential legal remedy available to the Petitioner which
precludes the constitutional writ from issuing.” Indeed, the “law is well established
that discretion can be exercised when no other adequate remedy at law is available
and when the decision below is arbitrary, capricious, or contrary to law.” Torrance
v. King County, 136 Wn.2d 783, 787-88, 966 P.2d 891 (1998) (emphasis added)
(citations omitted). The respondents argue that “Barnett had an adequate
alternative option to file a tort of wrongful discharge in violation of public policy”
either before the appeal to the PRB or after. Br. of Resp’t. DOC at 37 (citing inter
alia Smith v. Bates Tech. Coll., 139 Wn.2d 793, 803, 991 P.2d 1135 (2000) & RCW
4.96.010(1)).
Although she again glides past these arguments and at times conflates the
legal scheme governing statutory and constitutional writs, Barnett makes three
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No. 84009-6-I/14
arguments in response. First, she claims that “any such suit . . . would be dead in
the water,” citing to principles of preclusion and collateral estoppel. To her credit,
she later acknowledges that “[c]ollateral estoppel will be applied when the agency
is acting in a judicial capacity,” which we determined, for the reasons provided
above, the PRB is not. Thus, this argument fails.
Second, even if not precluded by the PRB’s decision, Barnett claims this
remedy sounding in tort would be engulfed in the “tangled thicket” of bringing a
wrongful discharge claim after administrative proceedings. That is, Barnett argues
that the remedy would not be “sure and certain.” However, that formulation is not
the standard. The standard, as framed in the analogous statutory writ context, is
whether there is “any plain, speedy and adequate remedy at law.” RCW 7.16.040.
And, “[a]lthough the writ [of review] may be convenient, no authority supports its
use as a matter of expediency.” Dep’t of Lab. & Indus. v. Bd. of Indus. Ins. Appeals,
186 Wn. App. at 246–47. Barnett’s hand-waving that such a lawsuit would be
difficult is insufficient.
Third, Barnett argues that the proposed remedy is not adequate because it
would only be brought against the DOC (the appointing and discharging authority)
and not the PRB, which she apparently believes is the truly guilty party. This is a
distinction without a difference: ultimately this is a personnel matter, whose crux is
the validity of the adverse action DOC took, which the PRB merely blessed.
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No. 84009-6-I/15
Barnett provides no authority holding that an employee should be able to “hold
accountable” such a sub-agency. “‘Where no authorities are cited in support of a
proposition, the court is not required to search out authorities, but may assume
that counsel, after diligent search, has found none.’” City of Seattle v. Levesque,
12 Wn. App. 2d 687, 697, 460 P.3d 205 (2020) (quoting DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962), review denied, 195 Wn.2d
1031, 468 P.3d 621 (2020)).
For these reasons, we find that the Superior Court did not abuse its
discretion in denying a constitutional writ of review.
As with the statutory writ, then we do not reach whether there is a
“threshold” or some kind of prima facie showing a petitioner must make on any of
the elements of a constitutional writ enumerated above, as Respondents ask us to
establish.
C. Administrative Record Prior to the Denial of Either Writ
Again, Barnett argues that Chapter 7.16 of the RCW requires the full
administrative record be filed prior to the determination of a statutory writ. Barnett
claims that “[t]he statutes are explicit that this is so.” We find that this reading of
RCW 7.16.040 is contrary to the plain language of the statute.
Pursuant to RCW 7.16.050, “The application must be made on affidavit by
the party beneficially interested” and otherwise does not mandate any specific
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No. 84009-6-I/16
process a court must take. “With the application for a writ, appellant must submit
material in support of it specifically designating the jurisdictional excesses, abuses
of discretion, or errors of law that substantially prejudiced appellant at the
administrative hearing.” Phillips v. City of Seattle, 51 Wn. App. 415, 422, 754 P.2d
116 (1988) (citing Concerned Olympia Residents for Env’t v. City of Olympia, 33
Wn. App. 677, 683, 657 P.2d 790 (1983)), aff'd, 111 Wn.2d 903, 766 P.2d 1099
(1989). Typically, a party seeking a writ applies to the superior court by way of
motion, sometimes ex parte. 2
If the writ is granted, the respondent certifies to the court for review the
records and proceedings. Specifically, beginning at 7.16.060, the statute
describes what occurs after the court issues a statutory writ “to any other [body]
having the custody of the record or proceedings to be certified.” RCW 7.16.060.
And, it is the writ itself that directs a party to “return the writ with the transcript
required” and “to certify fully to the court issuing the writ, at a specified time and
place, a transcript of the record and proceedings. . . .” for review by the court.
2 RCW 7.16.050 grants discretion to the trial court to grant the writ without
notice, or “grant an order to show cause why [the writ] should not be allowed.” In typical practice, prior to issuance of the writ of review, the moving party first applies for an “order to show cause” setting a time and place for the responding party to appear before the court and present any arguments against granting the writ, such as: timeliness of the application, lack of jurisdiction, failure of service, or lack of standing. See, e.g., Crosby v. County of Spokane, 137 Wn.2d 296, 303, 971 P.2d 32 (1999); In re King County Hearing Exam’r, 135 Wn. App. 312, 317, 144 P.3d 345 (2006); Davidson v. Thomas, 55 Wn. App. 794, 795, 780 P.2d 910 (1989).
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No. 84009-6-I/17
RCW 7.16.060, .070. Only then does the court entertain “questions involving the
merits.” RCW 7.16.120; see, e.g., State ex rel. Melville v. Turner, 37 Wn.2d 171,
175, 222 P.2d 660 (1950). Nothing in the statute suggests that the superior court
must obtain the full certified record before granting or denying a statutory writ.
What is more, there is no authority of any kind supporting the claim that a
constitutional writ requires any such process. Based on the cases cited above and
on this record, we do not accept the invitation to delineate a certain process.
Finally, the two cases Barnett adduces for the proposition that a full record
is required before a statutory or constitutional writ is issued are inapposite. In re
Dependency of B.W.K., No. 76675-9-I, slip op. (Wash. Ct. App. Oct. 29, 2018)
(unpublished) https://www.courts.wa.gov/opinions/pdf/766759.pdf, is simply an
example of an appellate court reviewing a trial record for error. The case has
nothing to do with statutory or constitutional writs.
In Crouch v. Ross, 83 Wash. 73, 75, 145 P.87 (1914), our Supreme Court,
over 100 years ago, affirmed the trial court’s denial of a writ in an unusual situation;
namely, where the court sought the underlying transcripts, which did not exist
because the stenographer could not read her notes. The Court held that “it was
not only within the discretion of the court, but was in a sense incumbent upon him,
to dismiss the proceedings.” Id. at 74 (emphasis added). There is no reference to
Chapter 7.16 of the RCW, although a version of it existed. And, the opinion, if
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No. 84009-6-I/18
anything, highlights, and bases the decision on, the significant discretion trial
courts have in considering constitutional writs of review. We do not now impose
additional requirements not mandated by any current authority.
III. CONCLUSION
We affirm the denial of the requested statutory and constitutional writs for
the reasons provided.
WE CONCUR: