                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        November 14, 2017
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    JOHN WORTHINGTON,                                                No. 49050-1-II

                Appellant/Cross-Respondent,

         v.

    WASHINGTON STATE            LIQUOR      AND               UNPUBLISHED OPINION
    CANNABIS BOARD,

                Respondent/Cross-Appellant.


        LEE, J. — John Worthington petitioned the Washington State Liquor Control Board, now

the Washington State Liquor and Cannabis Board, (WSLCB) to repeal all rules that were

promulgated in the wake of Initiative Measure 502 (I-502)1 passing in Washington State.

Worthington alleged that all of the I-502 rules were promulgated in violation of several provisions

of Washington’s Administrative Procedure Act (APA). The WSLCB denied the petition, and

Worthington sought judicial review in the superior court.

        On review, Worthington not only sought review of the WSLCB’s denial of his petition, he

also sought a declaration from the superior court that all the I-502 rules were invalid. The superior

court concluded that the WSLCB’s statement that Worthington had not objected to any particular

rule was erroneous and, therefore, arbitrary and capricious. The superior court further concluded



1
 Passed in November 2012, Initiative Measure 502 legalized the possession of small quantities of
marijuana for persons over 21 years of age. State v. Reis, 180 Wn. App. 438, 443 n.5, 322 P.3d
1238 (2014), aff’d, 183 Wn.2d 197, 351 P.3d 127 (2015); See RCW 69.50.4013(3)(a) (“The
possession, by a person twenty-one years of age or older, of useable marijuana, marijuana
concentrates, or marijuana-infused products in amounts that do not exceed those set forth in RCW
69.50.360(3)” is not a violation of Washington state law.)
No. 49050-1-II


that Worthington’s other claims were either unproven or inapplicable.         The superior court

remanded the case for the WSLCB to address Worthington’s objections and concerns with regard

to the WSLCB’s denial of his petition. Worthington appeals and the WSLCB cross-appeals to this

court.

         On appeal, we hold that (1) Worthington appealed the WSLCB’s denial of his rulemaking

petition and added a challenge to the validity of the I-502 rules, so review under RCW 34.05.570(2)

and RCW 34.05.570(4) is proper; (2) the superior court erred in not reviewing Worthington’s

challenge to the validity of the I-502 rules under RCW 34.05.570(2) and the appellate record is

insufficient for this court to conduct the review; (3) the superior court correctly held that the

WSLCB’s statement that Worthington did not object to a particular rule was erroneous, but the

WSLCB’s action was not arbitrary and capricious because the WSLCB’s statement applied to each

challenged rule; and (4) Worthington is not entitled to relief under the Uniform Declaratory

Judgment Act because he is able to seek relief under the Administrative Procedure Act. Therefore,

we affirm the WSLCB’s denial of Worthington’s petition, but reverse the superior court’s

dismissal of Worthington’s declaratory relief claim, and remand Worthington’s declaratory relief

claim challenging the validity of the I-502 rules under RCW 34.05.570(2) to the superior court.

                                             FACTS

A.       INITIATIVE MEASURE 502

         This case follows the passage of I-502 in November 2012. LAWS OF 2013, ch. 3, § 1.

Chapter 69.50 RCW codified I-502 into law and directed the WSLCB to promulgate rules for the

implementation of I-502. LAWS OF 2013, ch. 3, § 1; RCW 69.50.325. The WSLCB began the

process of developing those rules in December 2012 and adopted the first set of rules in November



                                                2
No. 49050-1-II


2013. WASH. ST. REG. 12-24-090 (filed Dec. 5, 2012); WASH. ST. REG. 13-21-104 (filed Oct. 21,

2013; effective Nov. 21, 2013); WAC 314-55-005.

          Chapter 314-55 WAC contains the rules promulgated to implement I-502 pursuant to RCW

69.50.325-369. Since the first I-502 rules were adopted, there have been several amendments and

revisions to the rules contained in chapter 314.55 WAC. See e.g., WASH. ST. REG. 14-02-022

(filed Dec. 20, 2013), 14-16-066 (filed July 30, 2014), 15-02-065 (filed Jan. 6, 2015), 16-01-111

(filed Dec. 17, 2015).

B.        WORTHINGTON’S PETITION TO REPEAL ALL I-502 RULES

          On April 20, 2015, Worthington submitted a second2 “Petition for Adoption, Amendment,

or Repeal of a State Administrative Rule,” (rulemaking petition). Administrative Record (AR) at

5 (some capitalization omitted). In the rulemaking petition, on the line provided for listing the

“rule number (WAC), if known,” for which repeal is requested, Worthington wrote “all marijuana

rules and marijuana land use decisions by the WSLCB.” AR at 6 (some capitalization omitted).

As for the reasoning for why the rule or rules should be repealed, Worthington checked the box

labeled “Other” and wrote, “Whether the rule was adopted according to all applicable provisions

of law.” AR at 6.

          Attached to his petition, Worthington provided a “Preliminary list of WAC’s [sic] to be

Repealed” that stated:

          1.      WAC 314-55-077
          2.      WAC 314-55-079
          3.      WAC 314-55-084
          4.      WAC 314-55-085
          5.      WAC 314-55-089


2
    The first petition is not at issue in this appeal.


                                                         3
No. 49050-1-II


       6.      WAC 314-55-092
       7.      WAC 314-55-104
       8.      WAC 314-55-105
       9.      WAC 314-55-075
       10.     WAC 314-55-050
       11.     WAC 314-55-010
       A.      Any Marijuana Infused products WAC
       B.      Any 1000 ft. rule WAC.
       C.      Any WAC establishing how many stores per city, county.

       All of these WAC[s], and more were developed without disclosing ex-parte contact
       and publishing ex-parte contact comments.

AR at 7 (some capitalization omitted).

       Worthington also attached a letter in support of repealing “all rules involved with the

implementation of I-502.” AR at 8. In the letter, Worthington argued that the I-502 rules should

be repealed because the WSLCB “violated the Appearance of Fairness Doctrine by meeting with

cities, counties, law enforcement, and treatment professionals in private,” and “the WSLCB failed

to place comments made by these individuals on the record, within the time frame required to

allow the public to inspect or rebut comments made by the secret stakeholders.” AR at 8.

Worthington also cited RCW 42.36.060, prohibiting ex parte communications in quasi-judicial

proceedings, and Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969), for the proposition

that the absence of the appearance of fairness invalidates a decision.

       On May 19, Worthington sent an e-mail to the WSLCB Rules Coordinator that stated,

“Please add this to the petition to amend adopt and repeal. All of the following rules below are

invalid because the WSLCB violated RCW 34.05.375, which covers the following.” AR at 58

(emphasis omitted). The e-mail listed every RCW from RCW 34.05.310 through 34.05.395 and

every WAC from WAC 314-55-005 through 314-55-540. The e-mail also included the texts of




                                                 4
No. 49050-1-II


RCW 34.05.315, .370, .325, and .375, and stated that those statutes were violated because the

WSLCB was “caught holding 17 secret public meetings, and altering the rule making file.” AR at

60.

         Four days later, Worthington sent another e-mail to the WSLCB Rules Coordinator that

requested an e-mail exchange be added “to the Petition for adoption amendment repeal.” AR at

65. The attached e-mail exchange was between Worthington and the WSLCB’s Public Records

Compliance Manager regarding a Public Records Act request that Worthington made. In pertinent

part, the Public Records Compliance Manager told Worthington, “Prior draft versions of the

rulemaking file, prior to adoption of the I-502 rules, no longer exist as rulemaking files are

continuously updated until completed and finalized upon adoption of rules. This is the final

rulemaking file for the Board’s original adoption of chapter 314-55 WAC that you inspected.” AR

at 65.

         On June 10, the WSLCB Rules Coordinator presented the recommendation of the WSLCB

office staff to the WSLCB. The recommendation was to deny Worthington’s rulemaking petition

because “[t]he Petition does not object to any particular rule, but only to the Board’s rule adoption

process and alleged effect of the rules. Staff believes the proper rulemaking processes were

followed and the rules properly implement the initiative.” AR at 3.

         The WSLCB accepted the recommendation and denied Worthington’s rulemaking petition.

In a letter that accompanied its denial of Worthington’s petition, the WSLCB stated the reason it

denied the rulemaking petition was because “[t]he board believes the proper rulemaking processes

were followed and the rules properly implement Initiative 502.” AR at 2. Worthington appealed

the WSLCB’s denial of his rulemaking petition to the superior court.



                                                 5
No. 49050-1-II


       On June 15, Worthington filed in the superior court a “Complaint for Violations of Article

I Section 3, and Article I Section 12 of the Washington State Constitution, Petition for Review

under RCW 34.05.570, Declaratory and Injunctive Relief Pursuant to RCW 7.24.” CP at 628

(some capitalization omitted). In this filing, Worthington: “challenge[d] the constitutionality of

I-502 for violations of Article I Section 3, and Article I Section 12 of the Washington State

Constitution, for failing to provide due process protection of rights”; alleged “[t]his lawsuit is also

a petition for judicial review . . . for failing to follow procedural due process required by RCW

34.05 and the Washington State Constitution”; and asserted that “[t]he Petition for Review and the

Complaint for Declaratory and Injunctive Relief both arise [f]rom the WSLCB actions during

rulemaking, and prior to rulemaking.” CP at 628-29.

       In response, the WSLCB moved for a more definite statement under CR 12(e). In the

motion, the WSLCB stated:

       1. It is unclear whether Worthington is bringing solely a petition for review under
       RCW 34.05.570 or whether he is seeking to combine a civil complaint and a
       petition for review.

       2. To the extent that Worthington’s Complaint constitutes a petition for review
       under RCW 34.05.570, it is unclear whether Worthington is petitioning the court
       solely for review of rules under RCW 34.05.570(2) or whether he is seeking review
       of additional agency action, such as an agency order in an adjudicative proceeding
       under RCW 34.05.570(3), or ‘other agency action’ under RCW 34.05.570(4).
       Worthington’s Complaint does not clearly identify the agency action of which he
       seeks review. The lack of clarity in Worthington’s Complaint not only prevents
       Defendants from determining an appropriate response, but also prevents
       Defendants from preparing an appropriate agency record for judicial review under
       RCW 34.05.566(1).

       3. To the extent that Worthington’s Complaint constitutes a petition for review
       under RCW 34.05.570, it is unclear what relief, if any, Worthington alleges is
       available against defendants Chris Marr, Ruthann Kurose, Sharon Foster, Rick
       Garza, and the State of Washington.



                                                  6
No. 49050-1-II



CP at 640-41. A stipulated and agreed order granting the WSLCB’s motion for a more definite

statement was entered in August, which required Worthington to file an amended complaint that

clarified:

        (1) whether the matter is solely a petition for review under RCW 34.05.570, or
        whether a civil complaint is being combined with a petition for review, (2) the
        nature of the petition for review including the specific agency action for which
        review is requested, (3) what relief is being sought against defendants Chris Marr,
        Ruthann Kurose, Sharon Foster, Rick Garza, and the State of Washington and (4)
        comply with CR 8 and 10(b) by containing only simply, concise and direct
        allegations in separate numbered paragraphs.

CP at 646-47.

        Worthington then filed “Petitioner’s 1st Amended Petition for Review Under RCW

34.05.570, and 1st Amended Complaint for Violations of Article I Section 3, and Article I Section

12 of the Washington State Constitution,” (amended petition and complaint). CP at 649 (some

capitalization omitted). While much of the amended petition consisted of the same lengthy

arguments he had made in the earlier filing, Worthington stated in the amended petition and

complaint, “Pursuant to RCW 34.05,” he was petitioning for judicial review of the WSLCB’s

“decision denying Worthington’s Petition to repeal the rules for I-502.” CP at 649. Worthington

cites to RCW 34.05.570(2) on pages 20 and 21, arguing that the I-502 rules are invalid because

the secret “partnership” violated many subsections of RCW 34.05.310 through RCW 34.05.395.

CP at 668.

        As to the complaint portion, the amended petition stated, “This complaint also challenges

the constitutionality of 1-502 for violations of Article I Section 3, and Article I Section 12 of the

Washington State Constitution, for failing to provide due process protection of rights from a




                                                 7
No. 49050-1-II


minority class of marijuana prohibition stakeholders,” and “[t]his combined complaint challenges

the constitutionality of 1-502 rules under RCW 7.24, because only the WSLCB conducted rules

under the APA, while the other defendants encroached upon, and interfered with the rule making

process without officially participating after being properly listed in the pre-notice inquiry.” CP

at 649-50.

       On page 7 of the amended petition and complaint, Worthington asserted that the WSLCB’s

denial of his petition was arbitrary and capricious because he had listed several WACs that he

wished repealed. On pages 8, 19, and 20, Worthington asserted that the I-502 rules had not been

promulgated pursuant to RCW 34.05.375. His “Request For Relief Under the APA,” was for the

superior court to “vacate and set aside [the] WSLCB’s decision denying Petitioner Worthington’s

Petition to repeal all I-502 rules and for new Rulemaking for I-502 as contrary to law, not supported

by substantial evidence, and arbitrary and capricious, and remand the matter for further

proceedings consistent with all applicable law.”       CP at 671 (some capitalization omitted).

Worthington cited chapter 7.24 RCW on pages 15 and 18, but did not identify the relief he sought

under that chapter until page 23, where he requested, “A declaration that all I-502 rules and WAC’s

[sic] violate statutory, substantive and procedural due process, and after giving special privileges

and immunities as applied to the facts set forth herein and are therefore invalid.” CP at 671.

       In October, the WSLCB filed the certified agency record and “certif[ied] that the following

record contains all the matters considered in the June 10, 2015, Special Board meeting and

administrative proceeding for the above-entitled matter.” AR at 1 (cover page). The agency record

was 238 pages but did not include the I-502 rulemaking file. Worthington did not complain about




                                                 8
No. 49050-1-II


the absence of the rulemaking file from the agency record until he filed his reply brief to the

superior court in late April of 2016.

       In his opening brief to the superior court in March 2016, Worthington stated that he was

appealing the denial of his rulemaking petition. Worthington argued that the WSLCB “engaged

in [an] unlawful procedure and decision-making process”; “the WSLCB violated Article I Section

3, and Article 1 Section 12 of the Washington State Constitution”; and the WSLCB’s denial of his

petition was arbitrary and capricious because he had listed several WAC provisions he wanted

repealed in his petition, had challenged “all rules” in his petition, and had argued the rules were

invalid pursuant to RCW 34.05.375. CP at 24. He also argued in his brief that the WSLCB had

violated RCW 34.05.310, .325, and .370, and had erroneously interpreted the law. Finally,

Worthington alleged he was entitled to relief under chapter 7.24 RCW because he was denied due

process when the WSLCB held “secret meetings” and “[t]he only way to bring the shadow

government into the light is via injunctive relief.” CP at 33.

       Four days later, Worthington filed a “Motion to Allow Exhibits in Electronic CD Format,”

wherein he requested permission to “allow exhibits of more than 8,000 pages be submitted in

electronic form.” CP at 711 (some capitalization omitted). The WSLCB later moved for a

protective order based on Worthington’s discovery requests.        The parties later agreed to a

stipulated order that “(1) the Defendants need not respond to the requested discovery; and (2) Mr.

Worthington will withdraw his Motion to Allow Exhibits in Electronic CD Format.” CP at 776.

       The superior court held a hearing on Worthington’s amended petition and complaint on

May 6. The superior court made an oral ruling, “finding that the statement [in the WSLCB’s denial

of Worthington’s rulemaking petition] that Mr. Worthington didn’t object to any particular rule is



                                                 9
No. 49050-1-II


inaccurate, and, therefore, it’s arbitrary and capricious. I’m going to be remanding the case back

to the Board to appropriately address Mr. Worthington’s objections that he specified.” VRP (May

6, 2016) at 38. The superior court continued, “I’m ruling that it’s not appropriate for any RCW

7.24 relief to be provided in this action. That’s a separate Declaratory Judgment Act provision. It

doesn’t apply in this case.” VRP (May 6, 2016) at 38-39. The superior court also declined to

provide any relief against non-agency parties such as the attorney general’s office and the

governor’s office. Finally, the superior court concluded that the appearance of fairness doctrine

was inapplicable to the current proceeding and Worthington had failed to carry his burden on his

constitutional violation claims. The superior court ordered the WSLCB to draft an order reflecting

the court’s ruling.

       On May 10, before the WSLCB had presented the order, Worthington moved to clarify the

superior court’s ruling and for certification under CR 54. At the May 20 hearing for the

presentation of the order, the superior court also heard Worthington’s motion to clarify. At the

end of the hearing, the superior court ruled:

       You [Worthington] have filed a great amount of pleadings with the court. You file
       motions, you strike them, you file them again, and you strike them.

              One of the matters that you began to move forward on that you did not
       pursue was supplementing the record, and you have brought that issue before this
       Court at least a couple of different times. It is your burden to ask the Court to
       supplement the record that the agency provided last fall. We have had that
       discussion on the record before, and you did not pursue that.

               What was in front of me when I heard this matter on May 6th had to do with
       the RCW 7[.]24 declaratory judgment issue, which I denied, and the issue that you
       raised regarding repeal of the WACs that the Board instituted. I agreed with your
       claim that the Department acted in an arbitrary and capricious manner in addressing
       your challenges to the specific regulations, and I remanded so that the agency could




                                                10
No. 49050-1-II


       do its job in an appropriate way. I am not changing my ruling. I am not going to
       address the issues that you are continuing to try to raise regarding the rulemaking.

VRP (May 20, 2016) at 13-14.

       The superior court entered findings of fact and conclusions of law on May 20 as well.

Those findings of fact and conclusions of law stated:

                                     FINDINGS OF FACT
                                                 I.
               Worthington filed a petition for adoption, amendment repeal of rules under
       RCW 34.05.330 on April 20, 2015, requesting the Board to “repeal all rules
       involved with the implementation of I-502.” In support of this claim, Worthington
       argued that the Board violated the Appearance of Fairness Doctrine, that the Board
       violated provisions of the APA (RCW 34.05.315, RCW 34.05.370, and RCW
       34.05.325) by holding 17 secret meetings and that by doing so violated RCW
       34.05.375. Worthington also asserted that he was told the entire rule making file
       did not exist and was updated after rulemaking was completed but that there is no
       such thing as a “final rulemaking file.”
                                                II.

               The Board denied Worthington’s petition on June 10, 2015. In the Board’s
       denial, the Board stated[,] “The Petition does not object to any particular rule, but
       only to the Board’s rule adoption process and alleged effect of the rules. Staff
       believes the proper rulemaking processes were followed and the rules properly
       implement the initiative.[”]

                                                III.

               Worthington appealed this agency action to the Superior Court requesting
       relief under the Uniform Declaratory Judgment Act. Worthington also made new
       arguments not made before the Board, including claims that the rulemaking process
       was unconstitutional. Worthington also sought relief against non-agency parties
       including the Attorney General Bob Ferguson and Governor Jay Inslee.

               From the foregoing Findings of Fact, the court makes the following:

                                  CONCLUSIONS OF LAW

                                                 I.

               The court has jurisdiction over the parties and subject matter.



                                                11
No. 49050-1-II



                                               II.

             The Board’s denial of Worthington’s petition for rulemaking was other
      agency action reviewable under 34.05 RCW.

                                               III.

              The Board’s statement that Worthington did not object to any particular rule
      is erroneous and therefore arbitrary and capricious.

                                               IV.

              The Uniform Declaratory Judgment Act cannot afford relief of agency
      action and no relief will be granted by this court under that statute. This is a final
      judgment as to UDJA claims for purposes of CR 54(b).

                                               V.

             Worthington did not meet the high burden of establishing the Board’s
      rulemaking process was unconstitutional and, therefore, the Court will find no
      Constitutional violations.


                                               VI.

             The Appearance of Fairness Doctrine is inapplicable in the rulemaking
      context so there can be no violation of this Doctrine by the Board during
      rulemaking.

                                              VII.

             Relief is not appropriate under chapter 7.24 RCW because that chapter is
      not applicable to state agency action under 34.05 RCW.




                                               12
No. 49050-1-II


                                               VIII.

                  Relief is not appropriate under chapter 34.05 RCW against non-agency
       parties.
                                                IX.

                Under RCW 34.05. 574 “in a review under RCW 34.05.570, the court may
       (a) affirm the agency action or (b) order an agency to take action required by law,
       order an agency to exercise discretion required by law, set aside agency action,
       enjoin or stay the agency action, remand the matter for further proceedings, or enter
       a declaratory judgment order. The court shall set out in its findings and
       conclusions, as appropriate, each violation or error by the agency under the
       standards for review set out in this chapter on which the court bases its decision and
       order. In reviewing matters within agency discretion, the court shall limit its
       function to assuring that the agency has exercised its discretion in accordance with
       law, and shall not itself undertake to exercise the discretion that the legislature has
       placed in the agency. The court shall remand to the agency for modification of
       agency action, unless remand is impracticable or would cause unnecessary delay.[”]

               From the foregoing Findings of Fact and Conclusions of Law, the court
       enters the following:
                                         ORDER

                  IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

       This matter is remanded to the the [sic] Washington State Liquor and Cannabis
       Board to issue a new decision that will address each of Worthington’s specific
       objections and concerns brought in his Petition to the Board in a thoughtful manner.
       The Board is not required to address any arguments not made originally before the
       Board as part of Worthington’s original Petition. The Board does not need to
       address the Appearance of Fairness doctrine because that doctrine is inapplicable
       in the rulemaking context. The Court will not order relief against any non-agency
       party.

CP at 778-80.

       Both Worthington and the WSLCB sought this court’s review after the superior court’s

order. Their respective petitions for discretionary review were converted into appeals of right.

Clerk’s Spindle.




                                                 13
No. 49050-1-II


                                           ANALYSIS

A.       STANDARD OF REVIEW

         Washington’s Administrative Procedure Act (APA)3 allows any person to petition an

agency to adopt, amend, or repeal a rule. RCW 34.05.330(1); Squaxin Island Tribe v. Dep’t of

Ecology, 177 Wn. App. 734, 740, 312 P.3d 766 (2013). The APA also governs judicial review of

agency action. RCW 34.05.510. “An agency’s decision to deny such a petition for rulemaking is

eligible for judicial review and relief under RCW 34.05.570(4)(c) if the court determines the

agency’s action is arbitrary or capricious.” Nw. Sportfishing Indus. Ass’n v. Dep’t of Ecology, 172

Wn. App. 72, 90, 288 P.3d 677 (2012); see also Squaxin, 177 Wn. App. at 740 (“An agency’s

decision to deny a rule making petition is subject to judicial review as other agency action under

RCW 34.05.570(4).”).

         We will grant relief to a petitioner “only if we determine that the agency action is

unconstitutional, outside the agency’s authority, arbitrary or capricious, or taken by unauthorized

persons.” Id. (citing RCW 34.05.570(4)). The burden to show the invalidity of the agency’s action

is on the party challenging the agency’s action. RCW 34.05.570(1)(a). Our review is de novo, as

we sit in the same position as the superior court when reviewing an appeal from agency action,

“and apply the APA standards directly to the agency’s administrative record.” Id.




3
    Ch. 34.05 RCW.



                                                14
No. 49050-1-II


B.     DENIAL OF A RULEMAKING PETITION AND CHALLENGE TO THE VALIDITY OF THE RULES

       The principle issue in this appeal is whether the action before the superior court was limited

to an appeal of the WSLCB’s denial of Worthington’s rulemaking petition, or whether the action

to the superior court included a challenge to the validity of the I-502 rules that were adopted.4 This

distinction is important because it dictates the APA provision under which this court conducts its

review: If the challenge is solely to the WSLCB’s denial of Worthington’s rulemaking petition,

then RCW 34.05.570(4) guides this court’s review; but if the challenge includes a challenge to the

validity of the I-502 rules, then RCW 34.05.570(2)(c) guides this court’s review of the rules’

validity and RCW 34.05.570(4) guides this court’s review of the WSLCB’s decision to deny

Worthington’s rulemaking petition. Rios v. Dep’t of Labor and Indus., 145 Wn.2d 483, 491-92,

39 P.3d 961 (2002).

       1. Declaratory Relief Challenge Properly Before Superior Court

       Worthington argues that the superior court erred in not reviewing Worthington’s challenge

seeking declaratory relief under RCW 34.05.570(2)(b)-(c), and only reviewing the WSLCB’s

denial of his rulemaking petition under RCW 34.05.570(4)(c). In support, Worthington contends

that he alleged the WSLCB violated RCW 34.05.375 in every brief he filed, and that allegation

could only be reviewed under RCW 34.05.570(2)(c).




4
  Worthington argues before this court, as he did before the superior court, that he has standing to
seek judicial review under the APA and under the Uniform Declaratory Judgment Act. The issue
of standing was not contested at the superior court and is not contested here. Therefore, the issue
is not addressed.



                                                 15
No. 49050-1-II


       The record shows that Worthington filed a “Petitioner’s 1st Amended Petition for Review

Under RCW 34.05.570, and 1st Amended Complaint for Violations of Article 1 Section 3, and

Article 1 Section 12 of the Washington State Constitution” (the amended petition and complaint)

in the superior court after the WSLCB successfully moved for a definitive statement. CP at 649

(some capitalization omitted). Therein, he “petitions [the superior court] for judicial review of the

following decision of the [WSLCB] decision denying Worthington’s Petition to repeal the rules

for I-502, and conduct new rulemaking for I-502,” “challenges the constitutionality of I-502 . . .

for failing to provide due process,” and “challenges the constitutionality of I-502 rules under RCW

7.24.” CP at 649-50. In Paragraph 9.16, Worthington states, “By their acts and omissions,

defendants violated RCW 34.05.310[, .315, .325, .370] and that the rules for I-502 are invalid

pursuant to . . . RCW 34.05.570(2)(b)(ii)(c) [sic].” CP at 669.

       The record also shows that in his briefing to the superior court, Worthington began his

opening brief by stating that he is appealing the “denial of his Petition for Rulemaking” that

“ask[ed] the agency to (1) promulgate new rules for I-502, because the agency has engaged in

unlawful procedure and decision-making process, and has failed to follow a prescribed procedure.”

CP at 12. Worthington also cites to RCW 34.05.570(2) on page 10 of his opening brief to the

superior court. In his reply brief, Worthington again stated that he is appealing the decision to

deny his “petition to repeal rulemaking,” “and his request to adopt new rules and his complaint

under RCW 7.24.” CP at 527. Worthington also cited to RCW 34.05.570(2)(a) and .570(2)(c) on

page 3 of his reply brief. Finally, on the last page of his reply brief, and in the “Conclusion and

Request for Relief” section, Worthington states that he is entitled to, “A declaration that all I-502




                                                 16
No. 49050-1-II


rules and WAC’s [sic] violate statutory, substantive and procedural due process . . . and are

therefore invalid pursuant to RCW 34.05.570(2)(c).” CP at 537-38 (some capitalization omitted).

       Thus, from the record before this court, Worthington appealed the WSLCB’s denial of his

rulemaking petition and added a challenge to the validity of the I-502 rules when he appealed to

the superior court. Therefore, we hold that the superior court erred in not reviewing Worthington’s

challenge to the validity of the I-502 rules under RCW 34.05.570(2)(c).5

       RCW 34.05.570(2) addresses the “Review of rules” under the APA. RCW 34.05.570(2)(a)

provides, “A rule may be reviewed by petition for declaratory judgment filed pursuant to this

subsection or in the context of any other review proceeding under this section.”

                The validity of any rule may be determined upon petition for a declaratory
       judgment addressed to the superior court of Thurston County, when it appears that
       the rule, or its threatened application, interferes with or impairs or immediately
       threatens to interfere with or impair the legal rights or privileges of the petitioner.
       The declaratory judgment order may be entered whether or not the petitioner has
       first requested the agency to pass upon the validity of the rule in question.

RCW 34.05.570(2)(b)(i).

       Here, Worthington filed a rulemaking petition and the WSLCB denied that petition.

Worthington then appealed that denial to the superior court and included in that appeal a request




5
  There are a number of references in the record and in the WSLCB’s briefing that suggest
Worthington has already initiated a challenge to the validity of the I-502 rules under RCW
34.05.570(2) in a separate proceeding. See e.g., AR at 3 (“Worthington has filed at least one
lawsuit against the board challenging Initiative 502 and the rules adopted by the Board using the
same basis included in the petition.”); Br. of Resp’t/Cross-Appellant at 30 (distinguishing a
rulemaking petition brought under RCW 34.05.330 from “an original rulemaking challenge under
RCW 34.05.570(2) in superior court—which Worthington was already litigating at the time.”). If
another case was brought by Worthington challenging the validity of the I-502 rules under RCW
34.05.570(2), and a judgment on the merits has been entered, it may collaterally estop
Worthington’s challenge to the validity of the I-502 rules on remand.


                                                 17
No. 49050-1-II


for declaratory relief challenging the validity of the I-502 rules. Under RCW 34.05.570(2)(a),

Worthington’s challenge to the validity of the rules may be reviewed together with his appeal from

the denial of his rulemaking petition because the appeal from the denial of his rulemaking petition

is a review proceeding under RCW 34.05.570. Squaxin, 177 Wn. App. at 740. It does not matter

whether the WSLCB had the opportunity first to “pass upon the validity of the rule in question.”

RCW 34.05.570(2)(b)(i). Therefore, the superior court should have reviewed Worthington’s

challenge to the validity of the I-502 rules under RCW 34.05.570(2)(c), and the WSLCB’s denial

of Worthington’s rulemaking petition under RCW 34.05.570(4). Rios 145 Wn.2d at 491-92.

       2.      Challenge to the Validity of the I-502 Rules Under RCW 34.05.570(2)

       Worthington argues that we should hold that the rules in chapter 314-55 WAC are invalid

because we should “rule the Board failed to follow the statutory requirements outlined in RCW

34.05.375.”6 Br. of Appellant at 38. We decline to review the validity of the challenged I-502

rules because the rulemaking file is not part of the record on appeal.7




6
  RCW 34.05.375 provides in part, “No rule . . . is valid unless it is adopted in substantial
compliance with RCW 34.05.310 through 34.05.395.”
7
  Worthington argues throughout his briefing that we should hold that various provisions of RCW
34.05.310 through 34.05.395 were violated because the WSLCB failed to identify other agencies
consulted in the rulemaking file, failed to include various other documents in the rulemaking file,
and the WSLCB personnel “admitted removing documents from the rulemaking file to create an
ultra vires ‘final’ copy of the rulemaking file.” Br. of Appellant/Cross-Resp’t at 46. But these
arguments exceed the scope of our review. Our review is limited to a review of the action taken
by the WSLCB on Worthington’s rulemaking petition and the superior court’s failure to review
Worthington’s challenge to the validity of the I-502 rules that he included in his request for judicial
review to the superior court. We are not reviewing the proper procedures for maintaining a
rulemaking file, and, in any event, we are without sufficient information in the record and the
briefing to make such a determination.


                                                  18
No. 49050-1-II


       We considered a similar situation where the petitioner challenged the validity of a rule, but

the rulemaking file was not contained in the agency record on review in Musselman v. Department

of Social & Health Services, 132 Wn. App. 841, 853, 134 P.3d 248 (2006). In Musselman, we

considered a challenge to the validity of a rule permitting the agency to charge more than a patient

was able to pay. Id. We recognized our authority to review the validity challenge under RCW

34.05.570(2)(a), but held that we could not review the rule on appeal “because the rule-making

file [wa]s not part of the record on appeal.” Id. We explained, “The rule-making file contains

copies of all public notices relating to the rule-making process, transcripts of any public meetings,

copies of any comments received, a concise statement explaining the need for the rule, and any

other material the agency considered. RCW 34.05.370(2).” Id. “The rule-making file is necessary

for effective judicial review because it contains information the agency considered

contemporaneously with the adoption of the rule.” Id. at 854. Therefore, “Without the rule-

making file, this court cannot meaningfully review the agency’s reasoning process for adopting

the rule.” Id.

       Here, the rulemaking file is not in the record before us.8 Therefore, for the same reasons

explained in Musselman, we cannot provide a meaningful review of Worthington’s challenge to



8
  Worthington argues the trial court erred in making an oral ruling to the effect that Worthington
bore the responsibility of objecting to the absence of a rulemaking file in the record and bore the
responsibility of supplementing the record with a rulemaking file. We do not address this argument
because, as Worthington acknowledges, this ruling is not reflected in the superior court’s findings
of fact, conclusions of law, or order. See Doe I v. Wash. State Patrol, 80 Wn. App. 296, 304–05,
908 P.2d 914 (1996) (“A court’s oral ruling is not a final decision, and is not binding unless it is
formally incorporated into the written findings, conclusions, and judgment.”), abrogated in part
on other grounds in, Yousoufian v. Office of King County Exec., 152 Wn.2d 421, 98 P.3d 463
(2004).



                                                 19
No. 49050-1-II


the validity of the I-502 rules because the rulemaking file is not part of the appellate record. Id. at

853-54.

       3.        Arbitrary and Capricious under RCW 34.05.570(4)

       The WSLCB cross-appeals the superior court’s ruling that the WSLCB’s denial of

Worthington’s petition was arbitrary and capricious, and the superior court’s remand to the

WSLCB to address the reasons for denying each of the rules Worthington identified. The WSLCB

argues that its explanation for denying Worthington’s rulemaking petition met the requirements

under RCW 34.05.330, and that Worthington cannot establish that he was substantially prejudiced

by the denial of his rulemaking petition. We hold that the WSLCB’s reason for denying

Worthington’s rulemaking petition was not arbitrary and capricious.

       Worthington filed his rulemaking petition under RCW 34.05.330. That statute provides in

relevant part:

               (1) Any person may petition an agency requesting the adoption,
       amendment, or repeal of any rule. . . . Within sixty days after submission of a
       petition, the agency shall either (a) deny the petition in writing, stating (i) its reasons
       for the denial, specifically addressing the concerns raised by the petitioner, and,
       where appropriate, (ii) the alternative means by which it will address the concerns
       raised by the petitioner, or (b) initiate rule-making proceedings in accordance with
       RCW 34.

               (2) If an agency denies a petition to repeal or amend a rule submitted under
       subsection (1) of this section, and the petition alleges that the rule is not within the
       intent of the legislature or was not adopted in accordance with all applicable
       provisions of law, the person may petition for review of the rule by the joint
       administrative rules review committee under RCW 34.05.655.

The sufficiency of the agency’s explanation for its decision is evaluated in light of the purpose

behind RCW 34.05.330(1), which is to enable and facilitate judicial review. Squaxin, 177 Wn.

App. at 741.



                                                   20
No. 49050-1-II


         As stated above, we review an agency’s decision to deny a rulemaking petition under RCW

34.05.570(4)(c). Nw. Sportfishing, 172 Wn. App. at 90. RCW 34.05.570(4)(c) provides that,

“[r]elief for persons aggrieved by the performance of an agency action . . . can be granted only if

the court determines that the action is . . . (iii) Arbitrary or capricious.”9 An agency’s action is

arbitrary and capricious “‘if it is willful and unreasoning and taken without regard to the attending

facts or circumstances,’” such that if “‘there is room for two opinions, an action taken after due

consideration is not arbitrary and capricious even though a reviewing court may believe it to be

erroneous.’” Rios, 145 Wn.2d at 501 (quoting Hillis v. Dep’t of Ecology, 131 Wn.2d 373, 383,

932 P.2d 139 (1997). This inquiry requires us to review the record to “‘determine if the result was

reached through a process of reason, not whether the result was itself reasonable in the judgment

of the court.’” Rios, 145 Wn.2d at 501 (quoting Aviation W. Corp. v. Dep’t of Labor & Indus.,

138 Wn.2d 413, 432, 980 P.2d 701 (1999)).




9
    RCW 34.05.570(4)(c) provides:

                   (c) Relief for persons aggrieved by the performance of an agency action
          . . . can be granted only if the court determines that the action is:
                   (i) Unconstitutional;
                   (ii) Outside the statutory authority of the agency or the authority conferred
         by a provision of law;
                   (iii) Arbitrary or capricious; or
                   (iv) Taken by persons who were not properly constituted as agency officials
         lawfully entitled to take such action.

There is no argument or indication in this appeal that the WSLCB’s denial action was
unconstitutional, outside the WSLCB’s statutory or legal authority, or taken by someone not
legally entitled to deny the rulemaking petition. Thus, we only consider whether the WSLCB’s
denial of the rulemaking petition was arbitrary and capricious.


                                                   21
No. 49050-1-II


       Here, the WSLCB was required by RCW 34.05.330(1)(a)(i) to “specifically address[] the

concerns raised by” Worthington when it denied his rulemaking petition. The WSLCB explained

its denial of Worthington’s rulemaking petition: “The Petition does not object to any particular

rule, but only to the Board’s rule adoption process and alleged effect of the rules. Staff believes

the proper rulemaking processes were followed and the rules properly implement the initiative.”

AR at 3.

       As the superior court pointed out, the WSLCB’s “statement that Worthington did not object

to any particular rule is erroneous.” CP at 779. There is no room for two opinions about whether

Worthington objected to specific rules—he did. Rios, 145 Wn.2d at 501. However, the WSLCB’s

statement that it “believes the proper rulemaking processes were followed and the rules properly

implement the initiative” addressed all of the concerns Worthington raised about the rules he

sought to have repealed. CP at 778.

       Worthington’s concerns in his rulemaking petition were: “[w]hether the rule[s were]

adopted according to all applicable provisions of law”; whether the rules “were developed without

disclosing . . . and publishing ex-parte contact comments”; whether “in the course of making rules

for I-502, the [WSLCB ] violated the Appearance of Fairness Doctrine”; whether the WSLCB

“fail[ed] to place comments . . . on the record”; and whether RCW 34.05.375 or RCW 42.36.060

were violated. AR at 6 (some capitalization omitted), 7, 8. The WSLCB’s statement that it

“believes the proper rulemaking processes were followed and the rules properly implement the

initiative” addressed each of these concerns.        CP at 778. Given these claims, it was not

unreasonable for the WSLCB to provide a blanket statement that applied to each challenged rule.

Remanding for the WSLCB to address each rule Worthington identified would result in the



                                                22
No. 49050-1-II


WSLCB stating, for each rule in chapter 314-55 WAC, that it “believes the proper rulemaking

processes were followed and the rule[] properly implement[s] the initiative.” CP at 778. Requiring

the WSLCB to do this is unnecessary and unreasonable. Therefore, we hold that the WSLCB’s

action was not arbitrary and capricious.

D.      ACTION FOR RELIEF UNDER THE UNIFORM DECLARATORY JUDGMENT ACT

        Worthington argues he is entitled to relief under the UDJA, chapter 7.24 RCW.

Specifically, Worthington states that we should enjoin the participation of Results Washington,

State Prevention Enhancement Policy Consortium, the attorney general’s office, and the

governor’s office in rulemaking.

        Without deciding whether Worthington is entitled to relief under the UDJA, we hold that

Worthington’s arguments are without merit.

        Worthington argues, “There simply is no mechanism in the APA to enjoin superior

agencies or an executive order from interfering with future rulemaking” and “Worthington should

have prevailed on his UDJA claims because the Board in failing to see them failed to make any

reasoned arguments and gave passing treatment to Worthington’s specific allegations of violations

under the UDJA.” Br. of Appellant/Cross-Respondent at 60, 63. In the conclusion of his brief,

Worthington states, for the first and only time in his brief to this court, that he is entitled to relief

under the UDJA because the participation of the several complained-of groups in the rulemaking

process “violated the Washington State Constitution, Worthington’s substantive due process

rights, by granting privileges and immunities to a group of stakeholders with interests opposite to

those of Worthington.” Br. of Appellant/Cross-Respondent at 66.




                                                   23
No. 49050-1-II


        1.    A Need to Enjoin Other Agencies from Rulemaking is Not Explained

        Worthington’s argument that there “simply is no mechanism in the APA to enjoin”

agencies from being involved in future rulemaking is not persuasive because he does not provide

any reason why other agencies should be enjoined from participating in rulemaking. In support of

this assertion, Worthington contends that is impossible to comply with the APA and a governor’s

executive order encouraging cross-agency collaboration. Br. of Appellant/Cross-Respondent at

60. This contention is unsupported.

        The executive order Worthington cites is Executive Order 13-04, and, specifically,

subsections (b) through (f) of the order. Br. of Appellant/Cross-Respondent at 60; Exec. Order

No.              13-04                (Wash.           Sept.             10,             2013),

http://www.governor.wa.gov/sites/default/files/exe_order/eo_13-04.pdf.    Worthington has not

identified which part, or parts, of these directives render compliance with the APA impossible.

Therefore, we do not address his argument. RAP 10.3(a)(6); West v. Thurston County, 168 Wn.

App. 162, 187, 275 P.3d 1200 (2012) (refusing to consider issues that were not developed in the

briefing).

        2.    WSLCB did not “Fail to See” Worthington’s Arguments

        Worthington’s argument that he should have prevailed on his UDJA claims because the

WSLCB failed to see his claims, and so failed to make arguments against those claims, is not

persuasive. The WSLCB responded with an argument based on statutory authority. The WSLCB

argued in its response brief to the superior court, and again to this court, that RCW 7.24.146

precluded Worthington from seeking relief under the UDJA. RCW 7.24.146 provides that the




                                               24
No. 49050-1-II


UDJA “does not apply to state agency action reviewable under chapter 34.05 RCW.” Thus,

Worthington’s assertion that the WSLCB did not respond to his claims is incorrect.

       3.      Worthington’s Constitutional Claims are not Developed

       Worthington’s assertion that he is entitled to relief under the UDJA because his

constitutional rights have been violated is not persuasive. He fails to provide any argument

supporting his assertion. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193

(1962) (“Where no authorities are cited in support of a proposition, the court is not required to

search out authorities, but may assume that counsel, after diligent search, has found none.”). While

Worthington argued to the superior court and the WSLCB that his constitutional rights were

violated, none of those arguments are developed in his briefing to this court. Accordingly, we do

not consider them. RAP 10.3(a)(6); West, 168 Wn. App. at 187 (refusing to consider issues that

were not developed in the briefing).

E.     Conclusion

       We hold that: (1) Worthington appealed the WSLCB’s denial of his rulemaking petition

and added a challenge to the validity of the I-502 rules, so review under RCW 34.05.570(2) and

RCW 34.05.570(4) is proper; (2) the superior court erred in not reviewing Worthington’s challenge

to the validity of the I-502 rules under RCW 34.05.570(2) and the appellate record is insufficient

for this court to conduct the review; (3) the superior court correctly held that the WSLCB’s

statement that Worthington did not object to a particular rule was erroneous, but the WSLCB’s

action was not arbitrary and capricious because the WSLCB’s statement applied to each challenged

rule; and (4) Worthington is not entitled to relief under the Uniform Declaratory Judgment Act

because he is able to seek relief under the Administrative Procedure Act. Therefore, we affirm the



                                                25
No. 49050-1-II


WSLCB’s denial of Worthington’s petition, but reverse the superior court’s dismissal of

Worthington’s declaratory relief claim, and remand Worthington’s declaratory relief claim

challenging the validity of the I-502 rules under RCW 34.05.570(2) to the superior court.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                                       Lee, J.
 We concur:



                   Johanson, J.




                   Maxa, A.C.J.




                                               26
