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Clymer v. Washington

filed: April 15, 1996.

WILLIAM CLYMER, APPELLANT,
v.
STATE OF WASHINGTON, DEPARTMENT OF EMPLOYMENT SECURITY, RESPONDENT.



Superior Court County: King. Superior Court Cause No: 94-2-19707-0-SEA. Date filed in Superior Court: 2/16/95. Superior Court Judge Signing: Robert Lasnik.

PER CURIAM -- William Clymer wanted to appeal an unemployment determination made in his case by the Commissioner of Employment Security. Although Clymer's attorney left the Petition for Review for a legal messenger several days before the deadline, the messenger did

not take the Petition from the attorney's office, evidently because it was not accompanied by a filing fee. Someone in the attorney's office found the Petition one day after the deadline for filing expired, and filed it that same day. The superior court dismissed Clymer's appeal, and we affirm.

FACTS

The Commissioner of the Washington's Employment Security Department issued a final decision relating to William Clymer's unemployment benefits application on July 8, 1994. On August 4, 1994, Clymer mailed copies of his Petition For Review to the Commissioner, the Attorney General, and his former employer. Also on August 4, 1994, Clymer's attorney, James Lambka, left the original Petition For Review on his receptionist's mantel with instructions to a legal messenger to file the Petition in superior court. Lambka left the office, the messenger arrived and questioned the receptionist as to why no check accompanied the original Petition. The receptionist stated that if the paper was out for pick up it should probably go. The messenger did not take the Petition, although no one at Lambka's office realized it until April 9, 1994, when someone discovered the Petition mixed in with other papers in the reception area. Lambka's office filed the Petition in superior court on April 9, 1994. The thirty day limitation period for filing the Petition expired April 8, 1994.

The superior court dismissed Clymer's Petition.

Discussion

When reviewing an administrative decision of the Department of Employment Security, the superior court exercises appellate, as opposed to general, jurisdiction. RCW 50.32.120, 50.32.180. Appellate jurisdiction is properly exercised only after all statutory procedural requirements are satisfied. Seattle v. Public Employment

Relations Comm'n, 116 Wash. 2d 923, 926, 809 P.2d 1377 (1991). For unemployment compensation cases, the procedural requirements for superior court review are contained in the Administrative Procedure Act. RCW 50.32.120, 34.05.510. Regarding a petition for review in superior court, the APA provides:

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

RCW 34.05.542(2). The trial court's conclusion of law, to which appellant does not assign error, found that appellant failed to filed his petition for judicial review within 30 days.

Clymer contends, however, that he substantially complied with the procedural requirements for superior court review. We will assume, without deciding, that a person seeking review of an administrative decision can substantially comply with the APA's judicial review filing requirement. Cf. Seattle v. PERC, 116 Wash. 2d 923, 928, 809 P.2d 1377 (declining to decide whether substantial compliance is applicable to APA), with Union Bay Preserv. Coalition v. Cosmos Dev. & Admin. Corp., 127 Wash. 2d 614, 620, 902 P.2d 1247 (1995) (refusing to apply doctrine of substantial compliance to APA requirement that all "parties of record" be served with Petition for Review because of "unequivocal definition of 'party' in the APA" and ...


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