Saldin Securities, Inc. v. Snohomish County

Talmadge, J.

(concurring) — I write separately to emphasize my fundamental disagreement with the majority’s discussion of the constitutional writ of certiorari in this case. Although the majority correctly concludes Saldin should not prevail here, it expands the scope of the constitutional writ, conferring unbridled authority upon the courts to usurp at their whim prerogatives constitutionally reserved to the other branches of government. The majority’s discussion of the writ offers no principled limitation to its reach. The majority condones circumvention of procedural statutes such as the Administrative Procedure Act (APA), RCW 34.05; the State Environmental Protection Act (SEPA), RCW 43.21C; or the Land Use Petition Act (LUPA), RCW 36.70C, at the discretion of the courts. Such unjustifiable judicial activism reaches far beyond the original highly constrained role of constitutional writs of certiorari and should be rejected.

The Court of Appeals properly observed the narrow scope of the constitutional writ by noting it was “an extraordinary remedy reserved for extraordinary situations.” Saldin Sec., Inc. v. Snohomish County, 80 Wn. App. 522, 528, 910 P.2d 513 (1996) (quoting King County v. Washington State Bd. of Tax Appeals, 28 Wn. App. 230, 237, 622 P.2d 898 (1981)). Though imprecise, this discussion at least implicitly recognized some constraints upon the writ. The majority suggests there are few, if any.5

*299A. Nature of Constitutional Writ of Certiorari

The majority opinion perpetuates unfortunate confusion that has arisen in this Court’s decisions concerning the common-law writ of certiorari found in article iy sections 4 and 6 of our State Constitution. The majority begins by saying, “The superior court has inherent power provided in article iy section 6 of the Washington State Constitution to review administrative decisions for illegal or manifestly arbitrary acts.” (Emphasis added.) Majority op. at 292.

Article iy section 6 does not provide for a superior court’s inherent power. Inherent power is just that, inherent:

The inherent power of the court is the power to protect itself; the power to administer justice whether any previous form of remedy had been granted or not; the power to promulgate rules for its practice; and the power to provide process where none exists. It is true that the judicial power of this court was created by the constitution, but upon coming into being under the constitution, this court came into being with inherent powers. Among the inherent powers is the power to admit to practice, and necessarily therefrom the power to disbar from practice, attorneys at law.

In re Bruen, 102 Wash. 472, 476, 172 P. 1152 (1918). Article iy section 6 sets out and enumerates the powers of the superior courts. The court’s inherent powers developed during the long history of common-law courts, not from constitutional mandate. As the Tennessee Supreme Court said, “The writ of certiorari does not owe its existence to constitutional provision or statutory enactment. It is a common law writ, of ancient origin.” Tennessee Cent. Ry. v. Campbell, 109 Tenn. 640, 645, 75 S.W. 1012 (1903). Thus, our state constitution merely encompassed the common-law writ of certiorari; it did not create it. Even in the *300absence of the constitutional provision, our courts would have the inherent power to issue writs of certiorari.6

Historically, the constitutional writ of certiorari developed long before the dawning of administrative law and the development of statutory avenues for judicial review of administrative decisions. The writ of certiorari is of ancient lineage. It has existed in both the common-law courts (King’s Bench) and the equity courts (courts of chancery) since the 13th century. Its original office was to provide a method for superior courts to correct the illegal activities of inferior tribunals, both judicial and administrative. The two inquiries the superior court made upon the issuance of a writ of certiorari were: (1) did the lower tribunal exceed its subject matter jurisdiction, and (2) did the lower tribunal act outside the law. See generally Chester James Antieau, The Practice of Extraordinary Remedies (1987); Forrest G. Ferris & Forrest G. Ferris, Jr, The Law of Extraordinary Legal Remedies (1926); 2 Thomas Carl Spelling, Injunctions and Other Extraordinary Remedies (2d ed. 1901). In Wilson v. City of Seattle, 2 Wash. 543, 544, 27 P. 474 (1891), we said: “The common law writ of certiorari is the proper remedy upon which to correct the errors of all inferior tribunals where they have exceeded their jurisdiction or proceeded illegally and there is no appeal or other mode of reviewing or correcting their proceedings.”

The majority offers no real guidance as to when the constitutional writ of certiorari may be invoked because it undertakes no analysis of the tenets supporting issuance of the constitutional writ. The majority suggests the writ is *301available to review any arbitrary and capricious act, or any act contrary to law if no other avenue of appeal is available, but the writ may even be available where a statutory writ or direct appeal is available if the party can show “good cause” for circumventing those procedures.7 Majority op. at 292-93. The majority’s analysis cuts the writ loose from its historical moorings, and offers no real analytical limit on the courts’ exercise of the power of review.

B. Saldin Not Entitled to Constitutional Writ of Certiorari

From its analysis of RCW 43.21C.075(6)(c), the majority concludes Saldin is entitled to a constitutional writ of certiorari. The majority’s conclusion is wrong for several reasons.

1. An Adequate Remedy Was Present

First, at common law, the constitutional writ of certiorari issued only when there was no other adequate remedy at law. Here, the statute in question does provide a remedy for persons in Saldin’s circumstances.

In this case, Saldin objects to the requirement the Snohomish County Council (Council) imposed that it complete an Environmental Impact Statement (EIS) before proceeding with its project. Saldin does not want to complete an EIS because of the expense and delay involved in doing so. Saldin complains the County Council’s decision was arbitrary, capricious, and illegal, and invoked the constitutional writ of certiorari in an attempt to gain judicial review of the Council’s decision.

Saldin claims it has no statutory means to appeal the Council’s decision, and, as a result, is entitled to issuance of the constitutional writ of certiorari. But this is not precisely true, as RCW 43.21C.075(6)(c) provides: “Judicial *302review under this chapter shall without exception be of the governmental action together with its accompanying environmental determinations.”8 Saldin argues such judicial review would come too late to prevent the financial burdens it will incur in completing the EIS, and the judicial review provided by RCW 43.21C.075(6)(c) would therefore not provide an adequate remedy. Thus, Saldin claims, a writ of certiorari lies.

The majority agrees with Saldin, stating, “For the developer who has been ordered illegally by an administrative agency to prepare an EIS and who incurs the requisite costs and delays, review of that decision by the agency after the permitting decision has been made is ‘too little, too late.’ ” Majority op. at 295. The majority goes on to say, “Additionally, without any opportunity for judicial review, public officials have a powerful tool to delay potential projects.” Majority op. at 295. The majority evidently thinks the Legislature made a big mistake by enacting RCW 43.21C.075(6)(c) and creating this “powerful tool.”9

*303The majority’s decision in this case is plainly an effort to “correct” this perceived legislative faux pas. “Correcting” what we think is poor legislation is not a legitimate function of the judicial branch. “It is not our role to substitute our judgment for that of duly elected officials .... In addition, the appropriate remedy when legislative action is considered unjust is political.” Raynes v. City of Leavenworth, 118 Wn.2d 237, 243, 821 P.2d 1204 (1992).

Saldin’s situation is reminiscent of the pretermitted heir rule, but here, the statute does not omit to mention those in Saldin’s position; it simply specifically provides they may not have judicial review until the process is complete. As a result, Saldin is not pretermitted. Because Saldin has an appeal, it is not entitled to a writ of certiorari:

The general rule is, that when an appeal lies, a certiorari will not be granted, for the obvious reason that the appeal is the remedy where it is given by statute, and the certiorari is an extraordinary legal remedy; and its aid can be invoked only in the absence of the ordinary remedy by appeal or writ of error.

George E. Harris, Certiorari § 44, at 37 (1893). That Saldin believes the procedural remedy offered by the statute is not adequate for its purposes does not mean a remedy is altogether absent.10 A statutory remedy exists; Saldin just does not like it. It is not for this Court to interfere with the Legislature’s determination of the adequacy of statutory remedies. Statutory remedies are entirely the purview of *304the Legislature.11 Serious concerns about separation of powers and the proper role of courts in our tripartite form of government arise if this Court is willing to question legislative policy decisions and intrude into questions purely legislative in nature.

In addition to the statute’s procedural remedy affording judicial review to Saldin, Saldin has an adequate remedy at law. The majority opinion makes no mention whatsoever of the availability of damages to Saldin under RCW 64.40. Saldin’s complaint about the County Council’s decision boils down to the costs it will incur preparing the EIS and the attendant delay in proceeding with the project. If Sal-din can prove the Snohomish County Council’s action in requiring an EIS was truly arbitrary and capricious, and there was in fact no justification for an EIS, it can recover the costs of preparation and delay, as well as attorney’s fees, under RCW 64.40.

2. Discretion of Courts as to Writ

Second, issuance of the constitutional writ of certiorari is never as of right; it is always discretionary with the court. North Bend Stage Line v. Department of Pub. Works, 170 Wash. 217, 226, 16 P.2d 206 (1932); State v. Kay, 164 Wash. 685, 688-89, 4 P.2d 498 (1931) (statutory writ); State v. Lockhart, 18 Wash. 531, 535, 52 P. 315 (1898) (common-law writ); Fokrest G. Ferris & Forrest G. Ferris, Jr., The Law of Extraordinary Legal Remedies § 160, at 181 (1926).

Here, “the question presented on this record is not whether the court below had power to grant the writ but whether in the light of all the circumstances the case was an appropriate one for the exercise of that power.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25-26, 63 S. Ct. 938, 87 L. Ed. 1185 (1943). In this case, as a matter of judicial restraint, the Court should respect the prerogative and policy determination of the legislative branch, and exercise its discretion not to intervene in a matter the Legislature *305specifically and particularly contemplated as not being amenable to review by courts.12 The majority’s decision here opens the door for interlocutory challenges at all stages of the SEPA process by any party to that process. All one has to do is clang the bell of arbitrary and capricious decision making, and like the fire horses of old, Washington courts may now come charging out, writ of certiorari in hand, to douse the flames. There are no restraints or constraints to the majority’s approach. Our courts will indeed become land use review boards. See RRI Realty Corp. v. Incorporated Village of Southampton, 870 P.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989).13

3. Review of Judicial or Quasi-judicial Decisions Only

At common law, only judicial or quasi-judicial decisions were reviewable under the writ of certiorari, and not legislative, discretionary, or ministerial acts. Ferris, supra, at 181-82. See also Bloomfield v. Mayo, 119 So. 2d 417, 421 (Fla. Dist. Ct. App. 1960) (“It is settled in this state that common law certiorari is limited only to review of judicial or quasi-judicial orders of administrative boards, bodies or officers.”); States Land Imp. Corp. v. Environmental Protection Agency, 231 Ill. App. 3d 842, 596 N.E.2d 1164, 1165

*306(1992) (common-law writ of certiorari is an available means of judicial review of final decisions of agencies exercising quasi-judicial functions); North Carolina Cent. Univ. v. Taylor, 122 N.C. App. 609, 471 S.E.2d 115, 117 (1996) (common-law writ may issue from a superior court to an inferior body exercising judicial or quasi-judicial powers); Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983) (common-law certiorari is available where the court reviews an administrative decision in which that agency is acting in a judicial or quasi-judicial capacity); Delaware Barrel & Drum Co. v. Mayor & Council, 54 Del. 205, 175 A.2d 403, 404 (Del. Super. 1961) (common-law writ of certiorari lies to reviews acts which are judicial or quasi-judicial in nature, and does not lie to review acts which are administrative or legislative in nature); Order of St. Benedict v. Town Council, 83 R.I. 500, 120 A.2d 329, 329 (1956) (common-law writ of certiorari is used ordinarily to review only the alleged illegal actions or decisions of an inferior judicial or quasi-judicial tribunal); State v. Albritton, 251 Ala. 422, 37 So. 2d 640, 642 (1948) (“At common law and under the practice in most jurisdictions, the writ of certiorari will lie to review only those acts which are judicial or quasi judicial in their nature. It does not lie to review or annul any judgment or proceeding which is legislative, executive or ministerial rather than judicial. The writ does not lie to review the action of an inferior tribunal or board in the exercise of purely legislative functions.”) (quoting 10 Am. Jur. § 10 at 533); People ex rel. Smith v. Hoffman, 166 N.Y. 462, 60 N.E. 187, 190 (1901) (common-law writ of certiorari issued to correct errors of law affecting the property or rights of the parties, and to test the validity of official action judicial or quasi-judicial in character); Quesenberry v. Road Comm’n, 103 W. Va. 714, 721, 138 S.E. 362 (1927). The Legislature duplicated the common-law writ’s limitation to judicial or quasi-judicial decisions in the statutory writ:

A writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or of*307ficer, 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.

RCW 7.16.040. We have construed the statute to include quasi-judicial decision making in addition to “judicial functions.” Buttnick v. City of Seattle, 105 Wn.2d 857, 860, 719 P.2d 93 (1986). See also State ex rel. New Washington Oyster Co. v. Meakim, 34 Wn.2d 131, 134, 208 P.2d 628 (1949) (writ of certiorari (the statutory writ of review) may be invoked for the purpose of reviewing judicial acts, and does not lie to review or annul judgments or orders which are legislative, executive, or ministerial rather than judicial). Thus, before deciding whether to issue the constitutional writ of certiorari, our courts must determine if the decision to be reviewed qualifies as a judicial or quasi-judicial decision.

We most recently articulated our four-part test for such determinations in Raynes v. City of Leavenworth, 118 Wn.2d 237, 244-45, 821 P.2d 1204 (1992) (quoting Standow v. Spokane, 88 Wn.2d 624, 631, 564 P.2d 1145 (1977)):

(1) whether the court could have been charged with the duty at issue in the first instance [The duty at issue in this case is a determination of whether to require an EIS. This duty is an administrative, not a judicial, decision made in the context of the administration of the State Environmental Policy Act (SEPA).]; (2) whether the courts have historically performed such duties [The determination of whether to require an EIS stems from SEPA, and did not exist before the enactment of SEPA. Courts have not, therefore, historically performed such duties.]; (3) whether the action of the municipal corporation involves application of existing law to past or present facts for the purpose of declaring or enforcing liability rather than a response to changing conditions through the enactment of a new general law of prospective application [At issue here is an administrative decision in a procedural context. “SEPA is essentially a procedural statute to ensure that environmental impacts and alternatives are properly considered by decision *308makers.” Save Our Rural Environment v. Snohomish County, 99 Wn.2d 363, 371, 662 P.2d 816 (1983). Thus, by its very nature, SEEA decision making does not involve judicial functions and is not concerned with “enforcing liability.”]; and (4) whether the action more clearly resembles the ordinary business of courts, as opposed to those of legislators or administrators. [The Snohomish County Council here reviewed an appeal from a hearing examiner’s determination regarding plat applications. Such matters are not the ordinary business of the courts.]

Raynes controls. The Rayneses opposed a proposed zoning amendment that would have allowed recreational vehicle (RV) parks as a conditional use in a tourist commercial district. They appealed the city administrator’s determination of no significant environmental impact to the Leavenworth City Council. The City Council denied the Rayneses’ SEPA appeal and passed the proposed zoning ordinance amendment. The Rayneses then sought review of the City Council’s decision under both the common-law writ of certiorari and the statutory writ. In considering whether the statutory writ was available, we had to determine whether the City Council’s decision was quasi-judicial. We said:

No clear line can be drawn between judicial, legislative and administrative functions of local decision-making bodies. Judicial actions have no single essential attribute. Instead, a number of factors are important to the determination. If a given proceeding of a decision-making body has a sufficient number of relevant characteristics, it may be considered quasi judicial in nature.

Id. at 243. An analysis under the four-part Raynes test compels the conclusion the action of the Snohomish County Council was not quasi-judicial. Here, the action of the Snohomish County Council in requiring the EIS was more clearly administrative than quasi-judicial. Thus, the writ does not lie.

CONCLUSION

This case presents an extremely significant issue regard*309ing the judiciary’s proper role in Washington government. The majority opinion declares open season on policy decisions of the legislative branch and administrative decisions of the executive branch. Under the majority’s holding, courts have the power to review everything from dog licensing determinations in Colville to hiring decisions of the Governor. All an aggrieved party must do to gain intervention by the courts of Washington in such matters is allege the challenged action was arbitrary and capricious, or illegal. Because I object to such judicial usurpation, as do all who cherish the vital and salutary role separation of powers has played in American government, I write separately to emphasize the need for our courts to approach the constitutional writ of certiorari with the exceptional restraint the common-law history of this ancient writ has always required, and with a proper sense of deference to the legitimate prerogatives and functions of the coequal branches of our government.

I would remand this case with instructions to dismiss the writ petition for failure to state a claim upon which relief may be granted.

Durham, C.J., and Guy, J., concur with Talmadge, J.

The Court of Appeals undertook an inquiry into “whether extraordinary facts or circumstances gave the superior court a tenable reason to grant constitutional writs of certiorari.” Saldin, 80 Wn. App. at 531. The majority responds by concluding the use of the term “extraordinary” does not “place an extra hurdle on the constitutional writ requirement.” Majority op. at 294. Both misconstrue the law. The term “extraordinary” has no substantive content. It is *299merely a shorthand description of the circumstances that must exist before a writ will issue. Historically, these extraordinary circumstances included things like the lack of jurisdiction or the illegality of the actions of an inferior tribunal, and the unavailability of any remedy. The proper inquiry is whether those circumstances justify issuance of the writ, not whether those circumstances are extraordinary.

As a matter of terminology, the common-law writ of certiorari and the constitutional writ of certiorari are the same writ in Washington. North Bend Stage Line v. Department of Pub. Works, 170 Wash. 217, 226, 16 P.2d 206 (1932) (“Manifestly, the writ of certiorari mentioned in the constitution also means such writ as existed under that name at common law.”). Our courts have usually referred to the writ as the constitutional writ to distinguish it from the statutory writ the Legislature enacted in 1895. Laws of 1895, ch. 65, § 4 (RCW 7.16.040). The statutory writ “broadened the relief obtainable” by the constitutional writ. North Bend at 223; see also State ex rel. Latimer v. Henry, 28 Wash. 38, 51, 68 P. 368 (1902) (“the legislature [in the statutory writ] enlarged the functions of the [constitutional] writ of certiorari”). The scope of the statutory writ of certiorari is not at issue in this case.

Except to the extent it may be said that arbitrary and capricious acts are in and of themselves illegal or contrary to law, the writ of certiorari did not he at common law for arbitrary and capricious acts. It was not until 1962, and without any analysis or discussion of the proper role of the constitutional writ of certiorari, that this Court first added arbitrary and capricious as elements of the writ. State ex rel. Cosmopolis Consol. Sch. Dist. No. 99 v. Bruno, 59 Wn.2d 366, 368-69, 367 P.2d 995 (1962).

In the circumstances of this case, “governmental action” means approval or disapproval of Saldin’s plat application. The Council’s decision on Saldin’s plat application is pending completion of the EIS.

Ironically, the Legislature in 1983 enacted RCW 43.21C.075(6)(c) to forestall project-delaying appeals of EIS decisions by community and environmental groups. In State v. Grays Harbor County, 122 Wn.2d 244, 250-51, 857 P.2d 1039 (1993) (quoting Richard L. Settle, The Washington State Environmental Policy Act: A Legal and Policy Analysis § 20, at 244-45 (1993)), we explained:

SEPA unequivocally declares that its right of judicial review “shall without exception be of the governmental action together with its accompanying environmental determinations.” This provision precludes judicial review of SEPA compliance until final agency action on the proposal. Then, and only then, are the agency’s earlier SEPA determinations (concerning categorical exemption, threshold review, scoping, EIS preparation and adequacy) subject to judicial review. Even though administrative review of threshold determinations may be allowed prior to final agency action, interlocutory judicial review of SEPA compliance never is permitted. This limitation on SEPA’s right of judicial review serves obvious, laudable purposes. Potential delay and costly litigation are greatly reduced. SEPA compliance is not subject to piecemeal, isolated adjudication but must be evaluated as an integrated element of government decisionmaking ....
SEPA’s absolute insistence upon simultaneous judicial review of all SEPA and any non-SEPA challenges of government action precludes multiple SEPA *303 and. non-SEPA lawsuits contesting various aspects of the same agency decision and the process by which it was reached.

Other jurisdictions are in accord that the common-law writ of certiorari lies only when no other remedy is provided for. See, e.g., Kelly v. Carmichael, 221 Ala. 339, 346, 128 So. 443 (1930) (the writ lies “in cases obviously entitled to redress and unprovided for by the ordinary forms of proceeding”); Bremer County v. Walstead, 130 Iowa 164, 169, 106 N.W. 352 (1906) (writ lies “where inferior boards, officers, or tribunals exceed their authority and no method of appeal has been provided by statute”); City of St. Albans v. Avery, 95 Vt. 249, 262, 114 A. 31 (office of writ of certiorari to provide for review where no other means of review provided), cert. denied, 257 U.S. 640, 42 S. Ct. 51, 66 L. Ed. 411 (1921).

Of course, the Court may act to safeguard constitutional rights where they are threatened. There is no constitutional right to develop land without having to complete an EIS.

The majority says, “The Legislature may not ‘trade off’ a person’s constitutional right to a writ of certiorari.” Majority op. at 295. There is no constitutional right to a writ of certiorari; issuance of the writ has always been discretionary. The majority does not identify any constitutional right at stake in this case that would compel issuance of the writ.

The majority’s assertion that parties who might disagree with an agency’s determination not to require an EIS would have an adequate remedy and therefore not be entitled to a writ of certiorari to review the determination of nonsignificance (DNS) is not persuasive. Suppose an agency decided to issue a DNS based on a flip of a coin, with total disregard of the facts and circumstances. This would be a quintessential arbitrary and capricious act. According to the majority, opponents of a project would not be entitled to a writ of certiorari at this stage because they may appeal the ultimate decision on the project when the agency finally makes one. This seems wrong. If indeed objective considerations would have supported the need for an EIS, the agency decision-making process about a proposed development would be entirely skewed if the decision makers did not have in front of them vital environmental impact data to inform their decision. One cannot say with certainty that when the agency is forced by a court to retrace its prior decision-making procedure on a project, this time with a court-ordered EIS in hand, the decision will be entirely objective.