Health, 152 Wn. App. 156, 216 P.3d 1039
(2009), Division I concluding that the
presiding officer should have excluded
evidence gathered under a warrantless
inspection and seizure; Dodge City
Saloon v. Wash. State Liquor Control
Comm’n, 168 Wn. App. 388, 288 P.3d
343 (2012), Division II citing Seymour
with approval). Division III has not yet
considered applying the exclusionary
rule to administrative proceedings.
Oregon courts have not excluded
evidence from administrative proceedings when that evidence was obtained
in violation of the Oregon Constitution
(TMM v. Lake Oswego School Dist., 198
Ore. App. 572, 108 P.3d 1211 (2005)).
There are cases in both Oregon and
Washington in which a court has suppressed evidence in a civil or criminal
proceeding when that evidence was obtained through an administrative search
in violation of the state constitution.
REPRESEN TATION IN
ADMINISTRATIVE HEARINGS
Representation of Agencies
In Washington, the Attorney General
represents state agencies in administrative hearings. RCW 43. 10.040. Notwithstanding the statutory language,
lawyers employed by some agencies
sometimes represent those agencies
in administrative hearings; e.g., child
support hearings before the Office of
Administrative Hearings, and Department of Revenue lawyers in “informal
appeals” (RCW 82.03.140) before the
Board of Tax Appeals.
In Oregon, agencies may be represented by the Attorney General in contested case hearings (ORS 183.452( 1)).
Agencies may be represented by an
officer or employee of the agency if
1) the Attorney General agrees to the
representation and 2) the agency rule
authorizes agency personnel to appear
and represent the agency in the type
of hearing.
Representation of Other Parties
In Washington, a party other than the
agency may appear and represent him-
self or herself or, if a corporation, by an
“authorized representative.” Any party
may be advised and represented by
counsel, at the party’s expense, or by
another representative if authorized by
law (RCW 34.05.428).
In Oregon, a party other than the
agency may appear and be represented
by counsel or another representative,
but the non-lawyer representative may
do so only in compliance with ORS
183.457( 2). The Oregon statute also limits the agencies before which non-lawyer
representatives may practice by describing those agencies in ORS 183.457( 1).
Licensing Issues Regarding Expiration
of Licenses and Jurisdiction in
Administrative Hearings
The issue sometimes arises whether an
agency has jurisdiction to suspend or
revoke a license if the license expires
before the issue comes on for hearing.
In Washington, RCW 34.05.422( 3) ad-
dresses this issue:
When a licensee has made timely and
sufficient application for the renewal
of a license or a new license with ref-
erence to any activity of a continuing
nature, an existing full, temporary, or
provisional license does not expire
until the application has been finally
determined by the agency, and, in
case the application is denied or the
terms of the new license limited, un-
til the last day for seeking review of
the agency order or a later date fixed
by order of the reviewing court.
Similarly, in Oregon, ORS 183.430( 1)
addresses the same question and pro-
vides, in pertinent part:
In the case of any license which
must be periodically renewed,
where the licensee has made timely
application for renewal in accordance with the rules of the agency,
such license shall not be deemed to
expire, despite any stated expiration date thereon, until the agency
concerned has issued a formal order
of grant or denial of such renewal.
JUDICIAL REVIEW
Burdens for Challenging an
Agency Order
In Oregon, the proponent of a fact or position in a contested case has the burden to
present evidence to support that fact or
position, ORS 183.450( 2), but judicial review of an order focuses on the standards
of review in ORS 183.482( 7) and ( 8)
without specifically imposing burdens
on judicial review. In Washington, RCW
34.05.570( 1)(a) specifies the burden of
demonstrating the invalidity of agency
action is on the party asserting invalidity.
APA as Exclusive Remedy
The Oregon and Washington APAs
both provide the exclusive remedy. In
Oregon, common law specifies the exclusivity rule; in Washington, the APA
specifies the rule.
Oregon appellate courts have consistently held that the Oregon APA establishes a comprehensive pattern for
the judicial review of administrative
decisions. The APA statutes governing
judicial review provide the sole and exclusive methods of obtaining judicial review
(Bay River, Inc. v. Envtl. Quality Com., 26
Ore. App. 717, 720, 554 P.2d 620 (1976);
School Dist. No. 48 v. Fair Dis. App. Bd.,
14 Ore. App. 35, 512 P.2d 799 (1973); see
also Wallace v. State ex rel. PERB, 245
Ore. App. 16, 263 P.3d 1020 (2011); Eppler
v. Bd. of Tax Serv. Exam’rs, 189 Ore. App.
216, 219, 75 P.3d 900 (2003); Kerivan v.
Water Res. Comm’n, 188 Ore. App. 491,
496, 72 P.3d 659 (2003)).
In Washington, RCW 34.05.510
specifies the Washington APA is the
exclusive means of judicial review of
agency action with three listed exceptions. Wells Fargo Bank, NA v. Dep’t of
Revenue, 166 Wn. App. 342, 271 P.3d
268 (2012) is a recent example of how
Washington courts narrowly construe
the exceptions. Wells Fargo’s claim included a claim for declaratory judgment
in addition to money; therefore, it did
LEARN MORE ABOUT THE
WSBA ADMINISTRATIVE
LAW SECTION BY ATTENDING
THE NORTHWEST
ADMINISTRATIVE LAW
INSTITUTE ON SEPT. 19–20
AT THE HILTON VANCOUVER
WASHINGTON.
For the first time, practitioners and
professionals from Oregon and
Washington will come together to
explore administrative law topics
and practice issues that span both
sides of the Columbia River. To register for the seminar, go to osbar.
inreachce.com.
