/·p··I-I:E
IN CLERICS OFFICE
llJIREME COURT, STATE OF WASHINGTON
DATE MAY 2 6 2016
77&~
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
NEW CINGULAR WIRELESS PCS, LLC, )
a Delaware limited liability company, ) No. 91978-0
)
Respondent, )
)
v. ) EnBanc
)
THE CITY OF CLYDE HILL, )
WASHINGTON, )
)
Petitioner. )
) Filed MAY 2 6 2016
JOHNSON, J.-In this case, we must decide whether a cellular service
provider may challenge a city fine through an action for declaratory judgment in
superior court. The trial court dismissed, holding that a declaratory judgment
action was improper and judicial review should have been sought by way of a
statutory writ of review under RCW 7 .16.040. The Court of Appeals reversed,
reinstating the declaratory action and remanding for a decision on the merits. New
Cingular Wireless PCS, LLC v. City of Clyde Hill, 187 Wn. App. 210, 349 P.3d 53,
review granted, 184 Wn.2d 1018, 361 P.3d 746 (2015). We affirm.
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
FACTS AND PROCEDURAL HISTORY
New Cingular Wireless PCS LLC is an affiliate of AT&T Mobility LLC and
provides both wireless voice telephone services and data services to customers in
the city of Clyde Hill. As outlined under its municipal code, Clyde Hill imposes a
local utility tax on wireless telephone services, which applies to both voice and
data services. 1 New Cingular had for years collected utility taxes from Clyde Hill's
residents on all charges for wireless and telephone voice and data services, and
paid the tax to the city.
In 2010, New Cingular was named as a defendant in a successful class
action lawsuit alleging that some of the local taxes AT&T (including New
Cingular) collected, including the utility taxes New Cingular had collected and
paid, were preempted by federal law. As part ofthe settlement between New
Cingular and the class plaintiffs, the parties agreed that these taxes were
preempted, and New Cingular further agreed to seek refunds of the state and local
taxes it paid on data services and to place any refunded amounts in escrow to
benefit its customers. Clyde Hill's utility tax was one of the local taxes over which
class members and New Cingular were authorized to seek a refund.
1
CLYDE HILL MUNICIPAL CODE (CHMC) 3.28.010, .020(B), .030(D).
2
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
In November 2010, New Cingular, on behalf of the class action plaintiffs,
filed a refund claim with Clyde Hill for $22,053.38 pursuant to the city's
overpayment ordinance. 2 New Cingular alleges Clyde Hill did not respond to the
refund claim, so on April25, 2012, New Cingular filed suit in King County
Superior Court to compel the city to pay the refund. That issue is not involved in
this case.
On July 6, 2012, Clyde Hill issued a notice of violation (NOV) and assessed
a $293,131 fine against New Cingular based on its determination that New
Cingular violated city code 3 by "making false statement[ s] or representation[ s] in
or in connection with utility tax returns submitted and received monthly by the
City of Clyde Hill from November, 2005, through December, 2010." Clerk's
Papers (CP) at 203. Clyde Hill found that the monthly utility tax reports New
Cingular filed with the city over that time period amounted to false statements
because the reports contained the amounts of tax collected and paid to the city
2
"Over or under payment.
"A. Overpayment. If the clerk, upon investigation or upon checking returns, finds that the
fee or tax paid by a taxpayer is more than the amount required of the taxpayer, he or she shall
return the amount overpaid, upon the written request of the taxpayer. Refund requests not made
by the taxpayer within four years of any overpayment shall be forever barred." CHMC 3.28.090.
3
"Unlawful Acts.
"It is unlawful:
"
"B. For any person to make any false or fraudulent return or any false statement or
representation in, or in connection with any such return." CHMC 3.28.130.
3
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
(including the improperly collected amounts) and included a declaration that all
information was "true, complete and accurate to the best of' New Cingular' s
knowledge. Clyde Hill alleged New Cingular's tax reports amounted to false
statements because New Cingular "unilaterally decided to collect monies from its
customers that it was not entitled to collect under federal law," resulting in fraud
each day until Clyde Hill was notified of the false statements by New Cingular's
refund claim. CP at 189. New Cingular disputes this and maintains it was unaware
it collected internet charges inappropriately.
The NOV stated that the determination of the civil violation was final unless
New Cingular contested it within 15 days, which New Cingular did in a timely
written protest. In response to New Cingular's protest, Clyde Hill sent a letter to
New Cingular's attorney, asking to "confirm whether your client desires an actual
informal hearing before Mayor Martin or whether your client prefers that a
decision on the protest be made from the written submission." CP at 594. New
Cingular opted for the "actual informal hearing" with the mayor. In September
2012, the informal hearing was held and consisted of a brief telephone
conversation between New Cingular's attorney and the mayor of Clyde Hill. On
January 22, 2013, the mayor issued a final decision upholding the NOV and the
amount of the fine. The mayor's final decision denied and dismissed New
Cingular's protest of the fine, alleging New Cingular "knowingly and/or
4
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
recklessly" engaged in conduct that violated federal law. CP at 204.
On April10, 2013, New Cingular challenged the legality of the municipal
fine in King County Superior Court by filing an action for declaratory judgment,
and asked the court to invalidate the NOV. Clyde Hill answered, counterclaimed,
and later moved for summary judgment, arguing that the court did not have trial
jurisdiction to consider the validity of the NOV (a quasi-judicial decision) under
article IV, section 6 of the Washington Constitution or RCW 2.08.010. The city
asserted:
New Cingular had 30 days in which to file a judicial appeal of the
Mayor's Final Decision by application for a statutory writ of
review pursuant to Ch. 7.17 [sic] RCW. New Cingular did not timely
appeal. Thus, the Mayor's Final Decision is final and binding, and the
superior court is without jurisdiction to entertain either (1) an
untimely judicial appeal of the Mayor's Final Decision, or (2) an
"original trial action" challenging the validity of the Notice of
Violation and attempting to collaterally attack the Mayor's Final
Decision affirming the Notice of Violation.
CP at 238-39. The trial court granted Clyde Hill's motion for summary judgment,
dismissed New Cingular's complaint on the basis that "[New Cingular] should
have sought review by filing a timely petition for writ of review," and awarded
Clyde Hill $293,131.00 plus 12 percent interest per annum. CP at 694. The trial
court also awarded Clyde Hill $47,500.90 in attorney fees.
The Court of Appeals reversed and remanded, reinstating New Cingular's
declaratory judgment action. New Cingular, 187 Wn. App. 210. The Court of
5
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
Appeals reasoned that a "complaint for declaratory judgment invokes the superior
court's trial jurisdiction, while a petition for certiorari invokes the superior court's
appellate jurisdiction," and both the state constitution and RCW 2.08.010 permit
either option. New Cingular, 187 Wn. App. at 212. The Court of Appeals held that
either avenue is permissible for a service provider to contest the legality of a
municipal fine in superior court, as long as administrative remedies are first
exhausted.
We must decide whether under article IV of our state constitution New
Cingular' s use of a declaratory action is appropriate under these circumstances to
challenge the fine. 4
ANALYSIS
Clyde Hill conceded below that New Cingular exhausted its administrative
remedies, which was noted by the Court of Appeals. Nonetheless, Clyde Hill
argues here that New Cingular's participation in the city's administrative process
and the Court of Appeals' ruling "makes a mockery of the exhaustion of
administrative remedies requirement," "completely undermines the requirement of
exhaustion of administrative remedies," and makes a local jurisdiction's
administrative procedures meaningless. Pet. for Review at 19, 20. Yet, Clyde Hill
4
Because we hold that a declaratory judgment action is appropriate, we need not address
whether a petition for writ of review is as well.
6
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
fails to cite any precedent to support such claims. New Cingular challenged Clyde
Hill's fine using all administrative remedies the city code afforded. New Cingular
submitted a written protest to the fine and elected to partake in the "actual informal
hearing" with the mayor. It was not until after the mayor issued a final decision
that New Cingular filed a declaratory action in superior court. No other
administrative review is established or required under Clyde Hill's ordinances. To
the extent we need to address this argument, we find that New Cingular exhausted
all administrative avenues before seeking judicial review.
Article IV, section 1 of the Washington State Constitution establishes and
directs the power of our state's court system. 5 Article IV, section 6 provides for the
jurisdiction of superior courts:
The superior court shall have original jurisdiction in all cases at law
which involve the title or possession of real property, or the legality of
any tax, impost, assessment, toll, or municipal fine .... The superior
court shall also have original jurisdiction in all cases and of all
proceedings in which jurisdiction shall not have been by law vested
exclusively in some other court.... [The superior court] shall have
such appellate jurisdiction in cases arising in justices' and other
inferior courts in their respective counties as may be prescribed by
law .... Said courts and their judges shall have power to issue writs of
mandamus, quo warranto, review, certiorari, prohibition, and writs of
habeas corpus.
5
"JUDICIAL POWER, WHERE VESTED. The judicial power of the state shall be
vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the
legislature may provide."
7
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
(Emphasis added.) Under this provision, original jurisdiction is established for the
causes of action listed and judicial action lies in superior court. The issue here,
however, focuses on whether specific statutory schemes exist that require
alternative procedures, and whether a resolution must first proceed through the
specified statutory process before judicial review is sought.
Stated differently, the focus is whether the legislature has enacted a statutory
scheme that diverts the superior courts' jurisdiction into an alternate procedure that
a party must use to challenge a municipal fine. Particularly, the question is whether
the writ of review statute (RCW 7.16.040) is akin to conditional statutory
procedures and thus prevents New Cingular from seeking declaratory judgment in
superior court to challenge Clyde Hill's fine. We find no such statutory system.
Clyde Hill couples the superior courts' constitutionally granted appellate
jurisdiction with the power to issue writs of review to argue that New Cingular
could not pursue a declaratory action. Clyde Hill asserts the Court of Appeals
misinterpreted article IV, section 6 of our state constitution "by failing to
acknowledge that long ago (prior to 1895) the Legislature had enacted the writ
statute, RCW 7.16.040, as the exclusive means for New Cingular to obtain judicial
review of [Clyde Hill's] administrative decision." Pet. for Review at 6. The city
asserts that the Court of Appeals erred in allowing New Cingular to "circumvent
the administrative process" by seeking declaratory judgment. Pet. for Review at 9.
8
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
Clyde Hill maintains that New Cingular was limited to challenging the mayor's
final determination of the fine, rather than the underlying fine itself, and could do
so only by seeking a writ of review. The city relies by analogy to the Land Use
Petition Act (LUP A), chapter 36. 70C RCW, the Administrative Procedure Act
(APA), chapter 34.05 RCW, and the Growth Management Act (GMA), chapter
36.70A RCW, to argue that the writ of review statute mandates similar, exclusive
procedural requirements. We disagree that the writ of review statute is similar to
those other statutory schemes.
The Court of Appeals correctly observed that "Clyde Hill tries to shoehorn
the mayor's affirmance of the fine into the same mold as land use decisions and
administrative agency decisions." New Cingular, 187 Wn. App. at 217. The court
noted that LUP A and the APA are "statutory creatures" that provide a procedural
route for challenging specific government decisions in superior court, none of
which involve municipal fines. New Cingular, 187 Wn. App. at 217. The court
provided contrast by finding that while the writ statute provides a means of
invoking the superior court's appellate jurisdiction, "it does not say that a writ of
review is the exclusive means of resolving a dispute over the validity of a
municipal fine." New Cingular, 187 Wn. App. at 217. Indeed, a difference exists
between statutory conditional procedures and the writ of review statute, which
serves as a backstop for claims lacking any other legal remedy.
9
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
LUPA is a comprehensive regulatory scheme governing judicial review of
land use decisions. While article IV does not expressly mention "land use
decisions," it does grant superior courts original jurisdiction authority over "all
cases at law which involve the title or possession of real property, ... and in all
other cases in which the demand or the value of the property in controversy
amounts to three thousand dollars or as otherwise determined by law." WASH.
CONST. art. IV,§ 6. As an "otherwise determined" source oflaw, LUPA "replaces
the writ of certiorari for appeal of land use decisions and shall be the exclusive
means ofjudicial review of land use decisions." RCW 36.70C.030(1) (emphasis
added). For a court to review a land use decision, a local jurisdiction must first
make a final decision, a petition to the superior court must be filed within 21 days
of the land use decision, and the petitioner must exhaust all available
administrative remedies. RCW 36.70C.020(2), .040(3), .060(2)(d); see Durland v.
San Juan County, 182 Wn.2d 55, 65, 340 P.3d 191 (2014). A court may grant relief
from a land use decision only if a party seeking relief shows:
(a) The body or officer that made the land use decision engaged
in unlawful procedure or failed to follow a prescribed process, unless
the error was harmless;
(b) The land use decision is an erroneous interpretation of the
law, after allowing for such deference as is due the construction of a
law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is
substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of
10
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
the law to the facts;
(e) The land use decision is outside the authority of jurisdiction
of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the
party seeking relief.
RCW 36.70C.130(1). Above all, the purpose ofLUPA "is to reform the process for
judicial review of land use decisions made by local jurisdictions, by establishing
uniform, expedited appeal procedures and uniform criteria for reviewing such
decisions, in order to provide consistent, predictable, and timely judicial review."
RCW 36.70C.010.
Likewise, the AP A mandates rigid procedural conditions before judicial
review of an agency decision can be sought. The AP A "establishes the exclusive
means ofjudicial review of agency action" in Washington. RCW 34.05.510
(emphasis added). This act was created "to clarify the existing law of
administrative procedure, to achieve greater consistency with other states and the
federal government in administrative procedure, and to provide greater public and
legislative access to administrative decision making." RCW 34.05.001. A person
may file a petition for judicial review of agency action only after exhausting all
available administrative remedies. RCW 34.05.534. A person has standing to
obtain judicial review of agency action only if that person is aggrieved or adversely
affected by the agency action. This occurs when (1) the agency action has
prejudiced or is likely to prejudice that person, (2) that person's interests are
11
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
among those the agency was required to consider when undertaken the agency
action, and (3) a judgment in favor of the person would substantially eliminate or
redress the prejudice caused or likely to be caused by the agency action. RCW
34.05.530. A petitioner must file for judicial review of an agency's final order
within 30 days. RCW 34.05.542(2).
The GMA was adopted as a system to govern comprehensive planning and
development by local governments. See RCW 36.70A.010. Petitioners challenging
a development decision are required to bring claims before growth management
hearings boards created by the GMA. A petitioner may allege only (1) that a state,
agency, or city plan is not in compliance with the requirements of the GMA as it
relates to the adoption of shoreline master programs, plans, development
regulations, or amendments; (2) that the 20-year growth management planning
population projections adopted by the office of financial management should be
adjusted; (3) that the approval of a work plan is not in compliance with statutory
mandates; (4) that regulations are not regionally applicable and cannot be adopted
by another jurisdiction; (5) that a department certification is erroneous; or (6) that a
department determination is erroneous. RCW 36.70A.280. Judicial review of the
hearing board's decision is permitted only if all parties to the proceeding before the
board agree to have direct review of the superior court. RCW 36.70A.295. Parties
who are aggrieved by a hearings board's final decision must appeal the decision to
12
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
the superior court within 30 days. RCW 36.70A.300(5).
LUP A, the APA, and the GMA all channel initial decision-making power
into inferior agencies and boards, and specify procedures a party must use. A party
may then seek a writ of review to ( 1) claim that an inferior tribunal, board, or
officer exercising judicial functions has exceeded its jurisdiction or (2) ask a court
to correct any erroneous or void proceeding or a proceeding not according to the
course of common law, as long as the party has no adequate remedy at law. RCW
7 .16.040. In its simplest form, the writ of review is a procedure used to review the
acts and decisions of an inferior tribunal when no other remedy is available.
The procedural schemes ofLUPA, the APA, and the GMA differ markedly
from the writ of review statute. The writ of review statute does not limit itself to
being the exclusive remedy for contesting a city fine. In fact, it does the opposite
by holding itself out as the remedy of last resort. RCW 7.16.040 (a writ may be
granted only when there is no "appeal, nor in the judgment of the court, any plait?-,
speedy and adequate remedy at law"). Chapter 7.16 RCW contains no specified
purpose similar to LUPA, the APA, and the GMA. The writ statute also fails to
specify a time limit for appeal like these statutory schemes. Specific conditional
statutory systems are, in fact, "other remedies" available depending on the subject
matter ofthe claim. Had New Cingular's complaint fallen into the category of land
use, administrative, or development decisions, one of these procedural regimens
13
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
might have been the appropriate avenue to seek review. However, the inverse
exists here because a municipal fine does not fall into any of these specific
categories. We find nothing in RCW 7.16.040 establishing a similar procedural
system.
Clyde Hill relies on Reeder v. King County, 57 Wn.2d 563, 358 P.2d 810
(1961 ), to argue that the writ of review process "under RCW 7.16 affords a litigant
the appropriate relief from an adverse administrative decision, thereby obviating
the need for a declaratory judgment action." Clyde Hill's Suppl. Br. at 14. By
doing so, Clyde Hill ignores the statutory differences between the writ of review
statute and these statutory schemes that govern land use, administrative, and
development decisions outlined above. The city also disregards CR 57, which
limits Reeder. CR 57 provides, "The existence of another adequate remedy does
not preclude a judgment for declaratory relief in cases where it is appropriate." The
Court of Appeals found that "the bar erected by Reeder is no longer absolute after
the adoption in 1967 of CR 57, as recognized by Ronken v. Board of County
Commissioners, 89 Wn.2d 304, 310, 572 P.2d 1 (1977)." New Cingular, 187 Wn.
App. at 219. We agree with this finding.
Ronken involved a dispute between private workers and the county board of
commissioners over the appropriate method for issuing road and public work
projects. In that case, we held that it was appropriate for the workers to seek
14
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
declaratory relief against the commissioners because Reeder no longer controlled
the issue of whether a party was precluded from seeking declaratory relief when a
writ process was available. We found that "[t]he rule previously followed by
Washington ... that declaratory relief will not lie where any alternative remedy is
available, was changed by court rule [CR 57] in 1967." Ronken, 89 Wn.2d at 310.
Outside of Reeder, no case supports the argument that declaratory judgment is
unavailable based on the writ of review statute.
Supporting this conclusion is our holding in Cost Management Services, Inc.
v. City of Lakewood, 178 Wn.2d 635, 310 P.3d 804 (2013), which permitted a local
business (CMS) to seek declaratory action in superior court against the city of
Lakewood. In that case, CMS discovered it had been paying taxes to the city it did
not in fact owe and sought a tax refund. The city did not respond to CMS' s refund
request. Instead, six months later, Lakewood issued an order and notice to CMS
demanding payment of what it considered CMS' s past due taxes. CMS did not
respond to the order and notice from the city, but sued Lakewood in superior court.
We held that CMS was permitted to seek declaratory judgment in superior court
because "Lakewood's inaction in response to CMS's refund request ended CMS's
obligation to continue pursuing" an administrative remedy. Cost Mgmt. Servs., 178
Wn.2d at 642. In that case, original jurisdiction in superior court sprung from the
city's failure to respond. The same is true here. New Cingular asserts that the city
15
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978-0
of Clyde Hill failed to respond to its refund request. Clyde Hill, instead, issued an
NOV claiming New Cingular perpetrated fraud. To remedy the situation for its
client, New Cingular's counsel pursued both an administrative solution through the
city's informal hearing process and also sought judicial review in superior court
after the mayor's determination. Our holding in Cost Management Services
supports this course of action. Where a local government fails to respond to a tax
refund request and exercise its administrative capacity, a party therefore is
authorized to seek a remedy by invoking the original jurisdiction of the superior
court. That is what New Cingular did here.
Declaratory action is an appropriate method to resolve this dispute between
New Cingular and the city of Clyde Hill. Consistent with the provisions of article
IV of the Washington Constitution, the legislature specifically granted superior
courts the "power to declare rights, status and other legal relations whether or not
further relief is or could be claimed." RCW 7.24.010 (emphasis added). We find
no basis under our constitution or any statutes to bar a party from seeking judicial
review of a municipal fine through a declaratory action under RCW 7.24.010.
16
New Cingular Wireless PCS, LLC v. City of Clyde Hill, No. 91978~0
We affirm the Court of Appeals.
WE CONCUR:
-I
~c:Y-~-
/
~~t,q.
0~/y_
17