Spectrum v. State Of Wash.

156 Wash.App. 949

235 P.3d 849

SPRINT SPECTRUM, LP, Appellant,v.STATE of Washington, DEPARTMENT OF REVENUE, Respondent.

No. 64943-4-I.

Court of Appeals of Washington Division 1.

July 19, 2010.

Michele G. Radosevich, Davis Wright Tremaine LLP, Seattle, WA, for Appellant.

Brett S. Durbin, Attorney General's Office-Revenue Div., Olympia, WA, for Respondent.

COX, J.

¶ 1 A petition for judicial review of an order of an administrative agency should be filed with the superior court within 30 days after service of the agency's final order.¹ The agency, the office of the attorney general, and all parties of record should be served with copies of the petition within the same 30-day period.²

¶ 2 Here, Sprint Spectrum, LP, timely filed its petition for judicial review of the final order of the Board of Tax Appeals. Sprint also timely served copies of the petition for review on both the Department of Revenue and the office of the attorney general. But Sprint has never served a copy of the petition on the Board of Tax Appeals. Due to this failure to serve the Board, the superior court dismissed the petition with prejudice. Because of Sprint's failure to comply fully with the service requirements of RCW 34.05.570(2), we affirm.

¶ 3 The facts in this case are undisputed. In October 2001, the Department of Revenue assessed Sprint for various state taxes, including uncollected retail sales tax due for a one year period on certain sales of wireless telephone service. The amount in dispute was almost $2,800,000 plus applicable interest and penalties. Sprint paid the full amount due and timely filed a notice of appeal with the state Board of Tax Appeals. Sprint appears to have elected to have a formal hearing of its appeal to the Board under the Administrative Procedure Act, chapter 34.05 RCW.³

¶ 4 In December 2008, the Board held a hearing on cross-motions for summary judgment. The Board made its final order and served Sprint and the Department with that order on February 11, 2009. The order sustained the Department's tax assessment and denied Sprint's request for a refund.

¶ 5 On March 6, 2009, Sprint filed its petition for judicial review, asking the Thurston County Superior Court to set aside the Board's final order and seeking other relief. Sprint served copies of its petition on the Department and the office of the attorney general on the same day that it filed the petition.

¶ 6 On May 13, 2009, the Department moved to dismiss Sprint's petition for failure to timely serve a copy of the petition on the Board. At oral argument of this case on appeal to this court, Sprint and the Department agreed that Sprint never served a copy of its petition on the Board, either within the 30-day period after service of the Board's final order or at any time thereafter. The superior court dismissed the petition with prejudice.

¶ 7 Sprint timely appealed.

PERSONS TO BE SERVED WITH A PETITION FOR REVIEW

¶ 8 Sprint argues that RCW 34.05.542(2), the APA provision stating the requirements for service and filing of a petition for judicial review, is ambiguous and the trial court erred when it dismissed its petition with prejudice. We hold that the statute is not ambiguous and that the failure to comply with its terms for service of a copy of the petition required dismissal of the petition.

¶ 9 Appeals from certain decisions of the Board of Tax Appeals are governed by the APA. “[W]hen the [Board's] decision has been rendered pursuant to a formal hearing elected under RCW 82.03.140 or 82.03.190 ... judicial review may be obtained only pursuant to RCW 34.05.510 through 34.05.598.” ⁴ RCW 34.05.542 states the requirements for filing a petition for judicial review of an agency's final order and for service of copies of that petition.

¶ 10 The meaning of a statute is a question of law reviewed de novo.⁵ “The court's fundamental objective is to ascertain and carry out the Legislature's intent, and if the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” ⁶

¶ 11 It is appropriate to resort to aids to construction if a statute is ambiguous.⁷ A statute is ambiguous if, after examining all that the legislature has said in that and related statutes, the statute remains susceptible to more than one reasonable meaning.⁸

¶ 12 Here, the adjudication of the dispute between Sprint and the Department before the Board was done at a formal hearing. Thus, the exclusive method for obtaining judicial review of the Board's final order is by the procedures specified in RCW 34.05.510 through 34.05.598.⁹

¶ 13 RCW 34.05.542(2) specifies the time for filing and service of a petition for judicial review of a final order of an agency.¹⁰ That statute states:

A petition for judicial review of an order shall be filed with the court and served on the agency, the office of the attorney general, and all parties of record within thirty days after service of the final order.

The dispositive issue here is whether Sprint's failure to serve the Board with a copy of its petition for judicial review supported the trial court's order dismissing that petition.

¶ 14 Our analysis begins with consideration of the words of the above statute. The plain words of the statute specify that filing of the petition for judicial review and service of copies of the petition must both be accomplished within 30 days after service of the final order of the agency. The only reasonable reading of these words is that “the agency” is the body whose final order is the subject of the petition for judicial review.

¶ 15 Here, “the agency” that must be served is the Board of Tax Appeals. It is undisputed that Sprint did not serve the Board with a copy of the petition within 30 days after service of the Board's final order. It never served the Board.

¶ 16 Further examination of the words of the statute makes clear who must be served with copies of the petition for judicial review within 30 days after service of the final order of the Board. Again, the plain words of the statute make clear that “the office of the attorney general” and “all other parties of record” must be served.

¶ 17 As for “parties of record,” we have several observations. First, the definitions at RCW 34.05.010(12) and (13) show that a “party” may be a “[p]arty to agency proceedings” or “[p]arty to judicial review or civil enforcement proceedings.” ¹¹ Applying these definitions here, it is clear that the Department is within the class “parties of record” for purposes of service of a copy of a petition for judicial review under RCW 34.05.542(2). Second, the same definitional sections make it equally clear that the Board of Tax Appeals is not within the term “parties of record” for service purposes. The Board is neither a “person to whom the agency action is specifically directed” nor a “person named as a party to the agency proceeding.”

¶ 18 Based on a reading of the plain words of the statute in the context in which these words are used, we conclude that the Board is “the agency” whose final order is the subject of a petition for judicial review. Timely service of a copy of the petition for review on the Board, the agency whose order is the subject of the petition, is required. Likewise, timely service on the Department, a party of record, is also required. The failure to timely serve a copy of the petition on the Board was a failure to comply with the express terms of the statute.

¶ 19 Banner Realty, Inc. v. Department of Revenue¹² is instructive. There, the Department of Revenue assessed additional taxes and interest exceeding $51,000 against Banner Realty following an audit.¹³ Following the Department's denial of Banner's petition for correction of the assessment, the company appealed to the Board of Tax Appeals, seeking a formal hearing.¹⁴ The Board conducted such a hearing and issued its final order denying Banner's request for relief.¹⁵ The Board mailed a copy of its order to Banner on March 27, 1985.¹⁶

¶ 20 On April 23, 1985, Banner filed its petition for judicial review in Pierce County Superior Court.¹⁷ On May 16, 1985, the Department moved to dismiss the petition due to Banner's failure to serve a copy of the petition on the Board of Tax Appeals within 30 days after service of the Board's final order.¹⁸ Banner appealed the superior court's order granting the motion.¹⁹

¶ 21 The court of appeals affirmed.²⁰ In doing so, it addressed several issues that parallel those raised in this case. One of those issues is the court's explanation of the reason for the requirement to serve the agency whose final order is the subject of the petition for judicial review. The Banner court stated:

Both parties acknowledge that one of the principal objectives of RCW 34.04.130(2) and its 30-day service requirement is to assure that judicial review is promptly sought and accomplished. Service on the agency rendering the final decision in

question is a prerequisite to and triggers transmittal of the administrative record to the court. RCW 34.04.130(4). In turn, RCW 34.04.130(5) largely confines judicial review to the record before the administrative agency. Service on the agency, therefore, is vital to the timely functioning of the review process. Without such service, there is no record before the superior court and thus, no basis for review.^[[^21]

¶ 22 Here, we have the same situation as in Banner. The final order of the Board of Tax Appeals is the subject of Sprint's petition for judicial review. That agency has the administrative record that is to be transmitted to the superior court for review. Thus, the rationale for requiring service on the Board in Banner also applies in this case.²²

¶ 23 Admittedly, there are other ways to ensure that the record of an administrative agency is promptly submitted to a court for review. But the legislature has specified that service on the agency whose order is the subject of a petition is required to accomplish that objective under...