140 Wash. 2d 323 | Wash. | 2000
Lead Opinion
Margaret Allan, Petitioner, petitioned in Thurston County Superior Court for a declaratory judgment to invalidate procedures adopted by the University of Washington (UW), Respondent, that amended the adjudication process for faculty disciplinary matters provided for in Chapter 28 of the UW Faculty Code. Allan, the wife of a UW professor, argued that the procedures had been promulgated in violation of the Administrative Procedure Act (APA), chapter 34.05 RCW The trial court agreed and granted summary judgment to Allan. The UW appealed, arguing that Allan lacked standing to initiate her lawsuit. The Court of Appeals, Division Two, reversed. It found that Allan lacked standing and, accordingly, did not reach
FACTS
The relevant facts are uncontroverted in this case. Margaret Allan is the wife of UW Professor Graham Allan. Professor Allan was the subject of a 1989 sexual harassment claim brought by a UW student. In response to that claim, the UW suspended and sought to terminate Professor Allan, but he appealed that action to a faculty committee which reinstated him following proceedings in which his wife was a participant, with separate counsel, under subpoena.
The student subsequently sued the UW and that lawsuit was settled in 1991. Part of the settlement was an agreement that the UW would seek to have the Faculty Senate change the procedures governing faculty members’ appeals of discipline arising out of student complaints. UW President William Gerberding subsequently proposed and strongly encouraged, in a 1992 letter to the chair of the Faculty Senate, changes to the “Faculty Code Adjudicative Procedures” that mirrored the settlement language. Clerk’s Papers (CP) at 145. Prior to the adoption of the changes, Allan, through counsel, advised the chair of the Faculty Senate that it was her belief that the UW must comply with the APA in adopting any proposed rule changes— including providing opportunity for public comment — or the changes would be invalid. In response, the UW Division of the Attorney General’s Office conveyed to Allan’s attorney its opinion that “[t]he revision to the faculty adjudication procedures is not subject to the Administrative Procedures Act because, under RCW 34.05.010(15), rules of institutions of higher education involving employment relationships are not ‘rules’ within the meaning of the APA.” CP at 330.
Changes to the adjudicative procedures in Chapter 28 of the Faculty Code were enacted in 1994 by a faculty vote.
ANALYSIS
The threshold question in this case is whether Margaret Allan has standing to challenge the 1994 revisions to the Faculty Code. The Court of Appeals analyzed Allan’s claim under the APA standing rule, RCW 34.05.530:
A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning of this section only when all three of the following conditions are present:
(1) The agency action has prejudiced or is likely to prejudice that person;
(2) That person’s asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and
(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.
(Emphasis added.)
Allan argues that “[t]he APA’s standing provisions are generously applied.” Br. of Resp’t at 26 (citations omitted). To illustrate this argument she points to United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973) (SCRAP). There the Supreme Court was confronted with a question of standing under the federal APA, and pointed to a number of cases in which the Court had allowed
important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote ... a $5 fine and costs . . . and a $1.50 poll tax .... While these cases were not dealing specifically with . . . the APA, we see no reason to adopt a more restrictive interpretation of “adversely affected” or “aggrieved.” As Professor Davis has put it: “The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.”
Id. at 689 n.14 (emphasis added) (citations omitted) (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613 (1968)). However, the Court has subsequently left the viability of SCRAP’s commentary on standing doubtful by writing of it that its “expansive expression of what would suffice for . . . review under its
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992), is heavily relied upon by the UW. There, where United States environmental groups sought to challenge, under the Endangered Species Act, the impact of a regulation upon animal species in foreign countries, the Court acknowledged that “[o]f course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Id. at 562-63 (emphasis added) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972)). However, it held that the groups had to demonstrate “not only that listed species were in fact being threatened by funded activities abroad, but also that one or more . . . members would thereby be ‘directly’ affected apart from their ‘ “special interest” in th[e] subject.’ ” Defenders, 504 U.S. at 563 (alteration in original) (quoting Sierra Club, 405 U.S. at 735, 739). In other words, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review he . . . among the injured.” Sierra Club, 405 U.S. at 734-35 (emphasis added).
In Defenders, the attempt to obtain standing was based upon affidavits from two environmental group members who had each once visited Africa and had never seen any endangered species there, but professed a desire to return at some indeterminate point in the future to try to observe endangered species. See Defenders, 504 U.S. at 563. Not surprisingly, the Court noted that “[standing. . .requires,
While Allan is correct in pointing out that Defenders had “an incredibly attenuated fact pattem[,]” Br. of Resp’t at 30 n.4, it is still applicable to her case. After all, under Defenders, Allan must demonstrate “a factual showing of perceptible harm.” Defenders, 504 U.S. at 566. The harm Allen notes here is that she “participated as a party in the very adjudication and litigation which resulted in these changes.” Br. of Resp’t at 29. This is true. However, the agency’s past action is not the one causing the asserted prejudice. See RCW 34.05.530(1). Moreover, the APA test speaks to present harm or more likely future harm. See RCW 34.05.530(1). Thus it would be improper to consider the past harm that Allan alleges she suffered as a result of the faculty adjudicative process involving her husband, as a sole basis for standing to challenge changes to that process made afterward. The Supreme Court has noted that “ £[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” Defenders, 504 U.S. at 564 (emphasis added) (quoting City of L.A. v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). The Court of Appeals is correct that Allan’s £‘hypothetical argument that she could [again] someday be a witness in an adjudicatory proceeding is speculative and insufficient to establish standing.” Allan, 92 Wn. App. at 38. Allan is left with little more than an argument of “procedural injury.”
Allan contends, however, that her position is supported by Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 920 P.2d 581 (1996) CTrades Council),
In Trades Council, labor organizations with trade ap
In this case the Court of Appeals found that “Mrs. Allan’s claimed interest, at best, is derived from her professor husband and his salary. But Mrs. Allan fails to establish a concrete interest of her own that has been injured by the claimed procedural error.” Allan, 92 Wn. App. at 37. The UW concedes that Professor Allan would have standing as a contracting faculty member to challenge an improperly promulgated change to the Faculty Code. Allan argues that she should have standing as a part of her husband’s marital community, asserting an interest in his income.
However, LaHue is certainly distinguishable here. Professor Allan’s interest in the UW’s rule-making process is based upon his employment by.the UW not just the income it generates. He has contractual interest in the rules that govern his working conditions. Allan does not share this individual interest. She has not shown a concrete interest of her own. “ £By the community property law of this state . . . the legislature did not create an entity or a juristic person separate and apart from the spouses composing the marital community.’ ” deElche v. Jacobsen, 95 Wn.2d 237, 243, 622 P.2d 835 (1980) (quoting Bortle v. Osborne, 155 Wash. 585, 589-90, 285 P. 425, 67 A.L.R. 1152 (1930)). The UW employs Frofessor Allan, not his marital community, and his wife cannot demonstrate that her “asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged . . . .” RCW 34.05.530(2) (emphasis added).
Furthermore, “[a] person is aggrieved or adversely affected within the meaning of’ the APA standing test only when the zone of interest and injury-in-fact prongs are satisfied. RCW 34.05.530. Allan cannot satisfy the injury-in-fact prongs by showing that the UW’s action “has prejudiced or is likely to prejudice” her. RCW 34.05.530(1). She cannot show a threat to the only interest that she identifies — her community property interest in Professor Allan’s income — that is “sufficiently real;” in other words, a threat that is “neither imaginary nor speculative.” Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 446 (9th Cir. 1994) (citing Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982)). She does not point to, for example, any pending disciplinary proceeding under the revised Faculty Code that involves Professor Allan. In comparison to the likely economic impacts upon plaintiffs found in Trades Council, any threat posed to Allan by the alleged violation of the APA herd is quite remote. Absent a concrete interest, injury-in-fact standing under
In conclusion, we find that Allan has not met the statutory test for standing in an APA case. In light of this disposition, we cannot reach the question of whether the changes to the Faculty Code were required to be adopted in compliance with the APA. We affirm the Court of Appeals.
Guy, C.J., Johnson, Alexander, Talmadge, and Ireland, JJ., and Coleman and Shields, JJ. Pro Tem., concur.
Some of the cases that Allan cites to demonstrate liberalization in standing requirements are inapposite here because they did not involve the question of standing under the APA. See City of Seattle v. State, 103 Wn.2d 663, 694 P.2d 641 (1985); Seattle School Dist. No. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978); Blondheim v. State, 84 Wn.2d 874, 529 P.2d 1096 (1975); State ex rel. Tattersall v.
Professor Allan’s income is community property, which “[e]ither spouse, acting alone, may manage and control. . . .” RCW 26.16.030.
Dissenting Opinion
(dissenting) — The issue in this case, at its threshold, is whether Mrs. Margaret Allan, wife of University of Washington (UW) professor G. Graham Allan, has standing under the Washington Administrative Procedure Act (APA), chapter 34.05 RCW, to challenge revisions to UW’s Faculty Code. If she does, the issue, which neither the Court of Appeals nor majority addresses, becomes whether the UW’s Faculty Code revisions fall under the ambit of the APA and, if so, whether the UW’s promulgation of the revisions runs afoul of it. It seems clear to me Mrs. Allan has as much standing to challenge the Faculty Code revisions as does her professor husband because of her community property share in his employment contract with UW I would therefore go to the merits of her claim and, for reasons I shall discuss below, affirm the trial court that these rules must be adopted in accordance with the APA or not at all.
STANDING
The linchpin of the Court of Appeals decision, and the majority’s opinion which affirms it, is “Mrs. Allan lacks standing under RCW 34.05.530 to seek judicial review of the University’s action because she is not a person ‘aggrieved or adversely affected’ by an agency action.” Allan v. University of Wash., 92 Wn. App. 31, 36, 959 P.2d 1184
(1) The agency action has prejudiced or is likely to prejudice that person;
(2) That person’s asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and
(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.
RCW 34.05.530(l)-(3). The majority correctly notes this test embodies “ ‘injury-in-fact’ ” and “ ‘zone of interest’ ” prongs. Majority at 327 (quoting Mian, 92 Wn. App. at 36 (citing St. Joseph Hosp. & Health Care Ctr., 125 Wn.2d at 739)). According to the majority, echoing the Court of Appeals, Mrs. Allan must show a “concrete interest of her own” in the outcome of the UW action in order to have standing under the AEA. Majority at 332-33 (“Absent a concrete interest, injury-in-fact standing under the AEA is not conferred upon the spouse of an administrative agency’s employee merely on the basis of an asserted failure on the part of the agency to follow procedural requirements.”); Allan, 92 Wn. App. at 37 (“Allan fails to establish a concrete interest of her own that has been injured by the claimed procedural error.”).
However it is unclear what sort of “concrete interest” test the majority is mixing. Mrs. Allan is within the “zone of interest” under RCW 34.05.530 because of her right of equal management of the property acquired through the marital community of herself and Frofessor Allan. Majority at 331; RCW 26.16.030. There is no question Mrs. Allan has a community interest in Frofessor Allan’s employment
The UW concedes Professor Allan, like any UW professor, would have automatic standing to challenge UW rule-making or adjudicatory actions under the APA. See Supplemental Br. of Resp’t at 10; Tr. of Oral Argument to Court of Appeals at 3. It is truly inexplicable, then, how the majority reaches its conclusion, after having recognized the UW’s concession on this point.
That Mrs. Allan’s community property share of Professor Allan’s employment contract places her within the zone of a concrete interest is supported by our decision in LaHue v. Keystone Inv. Co., 6 Wn. App. 765, 496 P.2d 343, review denied, 81 Wn.2d 1003 (1972). There, as the majority points out, the widow of a stockholder was found to have standing to maintain a derivative stockholder’s suit on the basis of her “ ‘one-half community interest in stock held in her husband’s name prior to his death,’ and it did not matter whether the stock was ‘formally set aside to her in the course of probate of her husband’s estate.’ ” Majority at 331 (quoting LaHue, 6 Wn. App. at 776-77).
The majority’s attempt to distinguish LaHue is as arbitrary as it is unsatisfactory. See Majority at 332. The majority states LaHue involved solely an economic interest — the wife’s community share in the husband’s stock. Here, the majority argues, Professor Allan’s employment contract embodied contractual interests “individual” to him that Mrs. Allan “does not share.” Majority at 332. This unidentified individual “contractual interest” (id.) is a red herring for the purposes of our analysis. No one seriously doubts the core interests of Professor Allan’s employ
The majority attempts to avoid this conclusion by distinguishing Professor Allan’s employment with the UW from the mere income it generates, claiming Mrs. Allan has a community property interest in the latter but not the former. Majority at 332 (“The UW employs Professor Allan, not his marital community . . . .”). This distinction is without a difference in the present case. Professor Allan’s very employment with the UW is undertaken as an agent of, and in furthering the interests of, the marital community. This is illustrated by the fact that whether or not his employment generated income, the marital community of which he is an agent would be liable should he commit a tort within the scope of his employment as his employment is in the benefit of the marital community. deElche v. Jacobsen, 95 Wn.2d 237, 245, 622 P.2d 835 (1980) (“Torts which can properly be said to be done in the management of community business, or for the benefit of the community, will remain community torts with the community and the tort-feasor separately liable.”). It is therefore community employment. Here the community nature of Professor Allan’s employment is doubly proved as he earns income that is community property. To the extent Mrs. Allan has a community property interest in the income Professor Allan generates, she has an interest in the employment that gives rise to that income under our long-standing precedent that is sufficient to confer APA standing in this case. See In re Marriage of Lindemann, 92 Wn. App. 64, 72, 960 P.2d 966 (1998) (“Ordinarily, a marital community is entitled to the fruits of all labor performed by either party to the relation
Its half-hearted attempt to distinguish LaHue notwithstanding, the majority cannot seriously claim Mrs. Allan lacks a concrete interest in the UW’s rule-making here. Thus the majority’s standing analysis would seem to center on the “injury-in-fact” prong of the APA standing test. However an argument that Mrs. Allan fails to aver an adequate injury-in-fact is conspicuously lacking in the majority opinion. Rather the majority collapses back in upon itself, arguing that by failing to aver anything other than a “ ‘hypothetical argument that she could [again] someday be a witness in an adjudicatory proceeding,’ ” which is “ ‘speculative and insufficient to establish standing,’ ” and therefore, “Allan is left with little more than an argument of ‘procedural injury’ ” Majority at 329 (alteration in original) (quoting Allan, 92 Wn. App. at 38). The majority continues, The “threat posed to Allan by the alleged violation of the APA here is quite remote.” Majority at 332. Then, in the very next sentence, the majority brings us full circle: “Absent a concrete interest, injury-in-fact standing under the APA is not conferred . . . ."Id. (emphasis added). But I have already demonstrated as unpersuasive the majority’s argument that Mrs. Allan lacks a concrete interest in the underlying UW proceedings.
With respect to Mrs. Allan’s putatively “ ‘procedural injury,’ ” Majority at 329 (quoting Allan, 92 Wn. App. at 38), the majority’s analysis places itself directly at odds with the law the majority itself cites. In Trades Council for example, as the majority quotes at page 330, we noted “[w]here an agency refuses to provide a procedure required by statute or the Constitution, the United States Supreme Court ‘routinely grants standing to a party’ despite the fact that ‘any injury to substantive rights attributable to failure to provide a procedure is both indirect and speculative.’ ” Seattle Bldg. & Constr. Trades Council v. Apprenticeship &
The majority would take us outside the sweep of this law by noting, “However, we noted that essential to the assertion of ‘such procedural rights’ was a ‘concrete interest’ . . . .” Majority at 330. Again the majority collapses its analysis into the “concrete interest” prong. As I have demonstrated, Mrs. Allan’s concrete interest undeniably flows from the marital community between herself and Professor Allan. Perhaps the majority would here unwittingly overrule the standing portion of the Trades Council decision; but if that is its intent, it should say so clearly.
As Mrs. Allan’s concrete interest in the community property (which is Professor Allan’s employment contract) is sufficient to grant her standing under RCW 34.05.530, I would recognize Mrs. Allan’s standing to challenge the UW’s procedures under the APA, and thus move to the merits of the underlying appeal.
APA COMPLIANCE
There is no question in this case that the revisions to the adjudication procedures in the Faculty Code here at issue
The APA defines what constitutes a “[r]ule”:
[A]ny agency order, directive, or regulation of general applicability . . . (b) which establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings. . . . The term includes the amendment or repeal of a prior rule, but does not include . . . (iv) rules of institutions of higher education involving standards of admission, academic advancement, academic credit, graduation and the granting of degrees, employment relationships, or fiscal processes.
RCW 34.05.010(16) (emphasis added). The UW “operates under the principle of ‘shared governance,’ whereby the faculty and administrators share authority for running the institution.” Br. of Appellant at 7. This principle is embodied in RCW 28B.20.200: “The faculty of the University of Washington shall consist of the president of the university and the professors and the said faculty shall have charge of the immediate government of the institution under such rules as may be prescribed by the board of regents.” Changes in the rules involving the “employment relationships” of faculty, as embodied in the Faculty Code, are initiated and approved by the faculty. See CP át 450.
The 1994 revisions to the Faculty Code that were adopted through the process challenged here did not, however, relate only to the employment rights of UW faculty members. They also involved rights of “[njonparty participantes] of right:” “[T]he person or persons who are alleged to be the victims of any harassment, discrimination or other wrongdoing . . . .” CP at 259 (Ex. A to aff. of L. Mark Eichorn, “Proposed Revisions to Faculty Code Provisions Regarding Adjudications (Chapter 28)”) (emphasis added).
The UW argues that the 1994 revisions to the Faculty Code at issue here fall under the above exemption from the APA for “rules of institutions of higher education involving . . . employment relationships.” The UW makes much of the meaning of the word “involving” in RCW 34.05.010(16), noting, correctly, that “[t]he starting point for analyzing this issue is, of course, the language of the statute itself.” Br. of Appellant at 29 (citing State v. Young, 125 Wn.2d 688, 694, 888 P.2d 142 (1995)). It points to the fact that under the former Higher Education APA “the exemption extended only to rules ‘relating primarily’ to employment relationships.” Former RCW 28B.19.020(2), repealed by Laws of 1988, ch. 288, § 701. In repheating language from this predecessor statute into the 1988 APA the legislature substituted “involving . . . employment relationships” for “relating primarily to . . . employment relationships [.]” The UW turns to a dictionary definition of the word “involve” to suggest that the legislature’s use of the word “makes it apparent that the Legislature did not intend to
Under 5 U.S.C. § 553, ££[g]eneral notice of proposed rule-making shall be published in the Federal Register,” § 553(b), in most cases, and after notice “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments[,]” § 553(c), and ££[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule,” § 553(e). However, these provisions do not apply to exceptions analogous to the higher education exemption at issue here, exemptions covering “a matter relating to agency management or personnel,]” § 553(a)(2), and “rules of agency organization, procedure, or practice ....”§ 553(b)(A).
Mrs. Allan points to a “substantial impact test” that has been used under § 553(a)(2) and § 553(b)(A) “to determine whether the agency is required to comply with the APA rule-making requirements.” Br. of Resp’t at 12-13. The question is whether the agency action has a substantial impact on private rights and interests of those outside the agency (in this case, nonfaculty). For example, where the United States Civil Service Commission attempted to invoke the § 553(a)(2) exemption for a challenged regulation the D.C. Circuit Court of Appeals held that “although the Commission’s regulation is only directed at government personnel it does not fall within section 553(a)(2) because outside individuals are substantially affected.” Joseph v. United States Civil Serv. Comm’n, 554 F.2d 1140, 1153 n.23 (D.C. Cir. 1977). In another case, where the United States Department of Labor invoked the § 553(b)(A)
Other “substantial impact” cases that Mrs. Allan cites relate to exemption clauses similar to RCW 34.05.010(16)(i): “[Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public . . . .” (Emphasis added.) See Woodland Private Study Group v. Department of Envtl. Protection, 109 N.J. 62, 70, 533 A.2d 387, 389-91 (1987) (construing intra-agency and interagency statements as used in N.J. Stat. Ann. § 52:14B-2(e); Persico v. Maher, 191 Conn. 384, 465 A.2d 308, 318 (1983) (interpreting language identical to RCW 34.05.010(16)(i) in Conn. Gen. Stat. § 4-166(7)). While RCW 34.05.010(16)(i), under which a “substantial impact” test certainly might be appropriate to measure whether statements affect “private rights or procedures available to the public[,]” is not implicated here, nevertheless analysis of the language of RCW 34.05-.010(16) (i) cannot lead one to the UW’s conclusion that it is also the exemption “most analogous” to the 5 U.S.C. § 553 exemptions at issue in Joseph and Batterton. Those exemptions are “similar” enough to the higher education exemption at issue here that their construction should guide this court. See RCW 34.05.001.
As the UW points out, our higher education exemption is without an identical federal parallel — and Mrs. Allan does not point us to such a parallel in another state. On its face,
It is true, for example, that rules involving “standards of admission, academic advancement, academic credit, graduation and the granting of degrees” are going to impact persons inside and outside the university (i.e., both students and applicants), and that this could have been contemplated by the legislature only in exempting such rules from the APA. The UW contends that its argument that the legislature “recognized the impact on third parties when it added the challenged exemption to the new APA” is supported by these impacts. However the UW undermines itself when it points to RCW 34.05.010(16)(i) to make an expressio unius est exclusio alterius argument. See Br. of Appellant at 33, 36 (citing Bour v. Johnson, 122 Wn.2d 829, 836, 864 P.2d 380 (1993)). The UW is correct in that the legislature did expressly identify the interests of the public as not being abrogated by another APA exemption— the exemption for “statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public . . . .” RCW 34.05-.010(16)(i). We see from this provision the legislature limited the exemption for “statements concerning only the internal management of an agency” to those “not affecting private rights or procedures available to the public . . . .” The broad scope of the APA’s application to state agencies is demonstrated by the fact that, without an express exemption, simple “statements” could otherwise be construed as
Instead, the use of the term “employment relationships” is part of the express limitation of the types of “rules of institutions of higher education” that are exempt from the APA. The higher education exemption is a narrow exemption. Were it otherwise, the legislature could have simply exempted “rules of institutions of higher education” without adding more. “ ‘Where a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature under the maxim expressio unius est exclusio alteráis — specific inclusions exclude implication.’ ” Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (quoting Washington Natural Gas Co. v. Public Util. Dist. No. 1, 77 Wn.2d 94, 98, 459 P.2d 633 (1969)). Thus the “implication” that “employment relationships” include rights of persons outside those two-party relationships, rights that UW seeks to take outside of the APA (while paradoxically invoking the APA in the rule changes in order to enforce its power over those rights through discovery and protective orders and subpoenas), is presumptively invalid. Cf. State v. Sommerville, 111 Wn.2d 524, 535, 760 P.2d 932 (1988) (“Under the rule of expressio unius est ex-clusio alterius . . . these exceptions are exclusive, and the further exception carved out by the trial court here is barred.”) (citing Queets Band v. State, 102 Wn.2d 1, 5, 682 P.2d 909 (1984); Washington Natural Gas Co.,
Therefore the process by which the challenged changes to chapter 28 of the UW Faculty Code were adopted in 1994 should have been governed by the notice and comment provisions of the APA, inasmuch as they did not solely involve “employment relationships.” Given there are no outstanding issues of material fact, we should reinstate the trial court’s summary judgment in favor of Mrs. Allan.
CONCLUSION
The UW has conceded that a faculty member, such as Professor Allan, would have had standing under RCW 34.05.530 to challenge the rules adopted here. See Supplemental Br. of Resp’t at 10; Tr. of Oral Argument to Court of Appeals at 3. This is presumably due to his affected salary interest, which is community property that “[ejither spouse, acting alone, may manage and control.” RCW 26.16.030 (emphasis added). LaHue and Trades Council both provide support for Mrs. Allan’s argument that she should have standing based upon this community property interest to challenge the process by which changes to chapter 28 of the UW Faculty Code were adopted in 1994.
Reaching the merits, the UW’s revision of the Facility Code violated the APA, inasmuch as the narrow exception for “rules of institutions of higher education involving . . . employment relationships[,]” RCW 34.05.010(16)(iv), was exceeded in adopting rules that impact the third-party rights of victims, and witnesses to victimization (through subpoena), of those employees. Under these changes to the Faculty Code “outside individuals are substantially affected.” Joseph, 554 F.2d at 1153 n.23. The majority should be mindful of the primary purpose behind the APA. When it adopted the 1988 APA, the legislature declared that it intended “to provide greater public and legislative access to administrative decision making.” RCW 34.05.001. As Professor Andersen wrote:
The purpose of rulemaking procedures is to ensure that*347 members of the public can participate meaningfully in the development of agency policy that affects them. When the questioned agency action will affect the public in a general way and where notice to and comment by the affected public seems useful, the action should be regarded as a rule.
William R. Andersen, The 1988 Washington Administrative Procedure Act — An Introduction, 64 Wash. L. Rev. 781, 791 (1989).
In light of the APA violation, the trial court’s summary judgment order in favor of Mrs. Allan should be affirmed and the Court of Appeals should be reversed.
Accordingly I dissent.
For example, the UW writes,
[C]ommon sense informs us, as it would the Legislature, that decisions about employment of faculty necessarily impact third parties to the employment contract, such as family of faculty, students, and other persons affected by the faculty member’s work. In the University setting, the latter might include patients being treated by medical faculty, companies and agencies making grants to researchers, or even persons who hope to benefit from a faculty member’s work, such as developing a new drug or surgical technique, or writing a prize-winning novel.
Br. of Appellant at 30. Even assuming all this to be true, how does it diminish Mrs. Allan’s argument? The UW does not point to any rules outside of the APA providing for an adjudicatory process that allows, for example, a third person aggrieved by a faculty member’s “prize-winning novel” to complain and be subject to discovery and subpoenas. No one is disputing that faculty members interact with the world outside of the UW The question is whether, when they victimize someone outside of the employment relationship, the disciplinary process can take place through rules adopted entirely outside of the APA.
The UW is “an agency” that enjoys the APA’s exemption for “statements” under ROW 34.05.010(16)(i). Thus, this exemption and the higher education exemption run on parallel tracks in their application to the UW.
Professor Andersen, the UW’s own resident expert on the APA, opined these revisions were subject to the Act. In response to a question “regarding the applicability of the APA’s rule-making provisions to the revisions” to the Faculty Code, CP at 135, Andersen, in an e-mail, wrote:
1. The question you ask is open.
2. The act has a narrow exemption of university rules .... This list doesn’t seem to me to exempt our adjudication rules. Moreover, it makes clear by implication that university rules generally ARE within the act.
4. My own position is that all rules with significant impacts (as these rules clearly do) should be run through the rulemaking procedures of the APA and I think there is enough in the rule definition in the section cited above to make a good case for that — especially since outside judges (who decide these things) have not always been as enthusiastic about the iviolability [sic] of “internal” university processes as us insiders tend to be.
CP at 135 (citing 34.05.010(15)). Andersen’s expertise on the subject of the APA, in the form of his seminal law review article on it, has been acknowledged and relied upon by this court in the past. See Aviation W. Corp. v. Department of Labor & Indus., 138 Wn.2d 413, 419, 980 P.2d 701 (1999); Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 797, 920 P.2d 581 (1996); St. Joseph Hosp. & Health Care Ctr. v. Department of Health, 125 Wn.2d 733, 739, 887 P.2d 891 (1995); Neah Bay Chamber of Commerce v. Department of Fisheries, 119 Wn.2d 464, 473, 832 P.2d 1310 (1992).
