Opinion
No. 35721-6-II.
March 18, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-2-01395-3, Gary Tabor, J., entered December 1, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Penoyar, JJ.
Washington State University (WSU) appeals the trial court's order dismissing its petition for a constitutional writ of certiorari to review a Personnel Appeals Board (PAB) decision. The PAB had ordered WSU to remedy its wrongful layoff of three employees. We affirm.
FACTS
On May 16, 2005, WSU laid off Fire Officers David Grimes, Terry St. Mary, and Stuart Bennett. Their positions ceased to exist when WSU agreed that the City of Pullman would provide fire and emergency medical protection. Before the layoffs, WSU notified the Fire Officers that it would abolish their positions due to lack of work.
Lisa Gehring, WSU's manager of human resources, met with each of the Fire Officers separately to discuss the layoffs. WSU provided each of the Fire Officers a form covering more than 50 options for positions outside their unit, each requiring a qualifying exam, with none being a firefighter position. None of the three Fire Officers chose to take advantage of the options.
Examples of positions offered to the Fire Officers included: police officer, maintenance mechanic, scientific instructional technician, heavy equipment operator, creamery operator, parking checker.
At oral argument before us, WSU noted that since 2001, other WSU fire department personnel, including the chief, had moved to the Pullman Fire Department.
WSU lies within the city of Pullman and for many years operated its own fire department. WSU and Pullman agreed to share resources and personnel by entering into a joint fire services agreement. On May 16, 2005, WSU ceased to operate its fire department and Pullman's responsibilities began.
The Fire Officers appealed WSU's layoff decision to the PAB under the state Merit System Rules, Titles 251, 356, or 359 WAC, and the Civil Service Law, chapter 41.06 RCW, in effect. The PAB granted the Fire Officers' motion for summary judgment and instructed WSU to remedy the improper layoff.
WSU petitioned the superior court for a constitutional writ of certiorari under article IV, section 6 of the Washington Constitution. The Fire Officers moved to dismiss the petition. The superior court granted the motion, dismissing WSU's petition for a writ of certiorari. WSU appeals the dismissal of its petition.
At argument before us, counsel for WSU explained that although the trial court denied WSU's motion for a stay, it had yet to comply with the PAB order.
ANALYSIS Constitutional Writ of Certiorari
WSU contends that the trial court erred in declining to grant a writ of certiorari. It asserts that the trial court stated no tenable grounds for its decision.
Under former RCW 41.64.130(1) (repealed by Laws of 2002, ch. 354, § 404, effective July 1, 2006), only an employee could appeal a PAB decision; hence, WSU had to seek review via a writ. See also Dep't of Corr. v. Personnel Appeals Bd., 92 Wn. App. 484, 489, 967 P.2d 6 (1998).
Washington recognizes the right to seek discretionary review of an administrative agency decision under the court's inherent constitutional power (also known as constitutional or common law certiorari). Foster v. King County, 83 Wn. App. 339, 343, 921 P.2d 552 (1996). We review the denial of a petition for a constitutional writ of certiorari for an abuse of discretion. Klickitat County v. Beck, 104 Wn. App. 453, 458, 16 P.3d 692 (2001). A court abuses its discretion when it bases its decision on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Put another way, if a trial court refuses to exercise its power to grant discretionary review, it must do so for tenable reasons. Wash. Pub. Employees Ass'n v. Wash. Personnel Res. Bd., 91 Wn. App. 640, 658, 959 P.2d 143 (1998); Bridle Trails Cmty. Club v. City of Bellevue, 45 Wn. App. 248, 252, 724 P.2d 1110 (1986). If the trial court abused its discretion, the remedy is to remand for issuance of the writ as we do not otherwise engage in full appellate review. Bridle Trails, 45 Wn. App. at 251-52.
When deciding whether to grant review of a petition for a constitutional writ of certiorari, "a court determines whether the petitioner's allegations, if true, clearly demonstrate that the hearing officer's actions were arbitrary, capricious, or contrary to law." Foster, 83 Wn. App. at 346. "Arbitrary and capricious means `willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.'" Foster, 83 Wn. App at 347 (quoting Kerr-Belmark Const. Co. v. City Council, 36 Wn. App. 370, 373, 674 P.2d 684, review denied, 101 Wn.2d 1018 (1984)).
No one disputes that the PAB acted within its authority and jurisdiction.
According to our Supreme Court, the decision whether to grant a constitutional writ is "entirely discretionary and cannot be mandated by anyone, including an appellate court." Raynes v. Leavenworth, 118 Wn.2d 237, 242 n. 1, 821 P.2d 1204 (1992). Indeed, only in Bridle Trails did an appellate court reverse a trial court decision not to issue a writ. 45 Wn. App. at 254. But there, the court remanded for the trial court to initially consider whether to issue a writ because the trial court had not made that threshold determination. Bridle Trails, 45 Wn. App. at 254.
Here, the trial court reviewed the PAB's determination that WSU could not demonstrate a lack of work. As the PAB noted, WSU lacked a foundation for laying off civil service employees. There was no foundation because the lack of work arose from WSU's own actions in contracting with Pullman for its fire services.
The circumstances here are strikingly similar to those in Western Washington University v. Washington Federation of State Employees, 58 Wn. App. 433, 442, 793 P.2d 989 (1990), and compel us to affirm. In Western Washington University, the University turned over its law enforcement protection to the City of Bellingham. 58 Wn. App. at 435. On review, we held that a lack of work for purposes of layoffs under the civil service regulations, WAC 251-10-030, cannot be justified on the basis that the claimed work shortage results from the contracting out of such work to others. W. Wash. Univ., 58 Wn. App. at 442. See also Cunningham v. Cmty. Coll. Dist. No. 3, 79 Wn.2d 793, 805, 489 P.2d 891 (1971) (reinstatement ordered for food service employees laid off after college contracted out its food service).
Nevertheless, WSU argues that the trial court's order was "the essence of brevity," that it "contains no reasons, tenable or otherwise, regarding the denial of the writ" and that the trial court erred in entering it. Appellant's Br. at 15. We disagree.
The trial court's oral ruling further explains its decision and we may look to it on review. See, e.g., In re the Marriage of (Griffin) Booth, 114 Wn.2d 772, 777, 791 P.2d 519 (1990) ("In the absence of a written finding on a particular issue, an appellate court may look to the oral opinion to determine the basis for the trial court's resolution of the issue.").
In its oral ruling, the court explained its reasoning:
I think there must . . . be some threshold showing that convinces me that there is an error obvious that was committed by the PAB in making their decision, and I don't believe that standard has been met to my satisfaction today. I am not convinced that [the PAB's] decision was arbitrary [and] capricious. That's an extremely high standard. The arbitrary and capricious standard basically [is] that no reasonable person could ever have decided this in that way, that someone just went off on a tangent and is totally unreasonable. That standard has not been met. And then the issue of contrary to law requires more than simply an allegation that the law was incorrectly applied in this case.
I think that petitioners for this writ of certiorari have some burden of convincing me that there was a decision that's contrary to law. In my opinion, that threshold has not been met, so I'm going to grant the motion to dismiss this petition.
Report of Proceedings at 21-22.
In ruling, the trial court set forth the correct standard of review, applying it to the arguments WSU raised. The trial court determined that WSU failed to meet the high threshold standards. In doing so, it based its decision on tenable grounds. Accordingly, the trial court did not abuse its discretion in denying the constitutional writ of certiorari.
Because we hold that the trial court did not abuse its discretion in dismissing WSU's petition for a constitutional writ of certiorari, we do not address WSU's other arguments based on the PAB's order. Hence, we decline WSU's invitation to review the administrative record.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Bridgewater, J.
Penoyar, J.