Fantastic Beasts of Administrative Law and Where to Find Them
Barbara Engstrom, Executive Director, King County Law Library
Unless the focus of one’s practice is a heavily regulated area of law, most attorneys don’t engage with Washington administrative law very often. If the occasion arises where one must enter this murky realm, fear and trepidation can ensue. Not to worry, the following tips will guide you to resources to find and tame the fantastic beasts of Washington administrative law.
Is it Lurking in the Shadows?
Whether or not regulatory law impacts a legal issue can sometimes be difficult to determine. A good rule of thumb at the outset of any research project is to check whether there is a statute that applies. If there is, you’ll want to make sure you are aware of any related regulations. The fastest way to do this is to use an annotated code. Annotated codes are like the Room of Requirements [1] to aid a seeker in need. If your research question involves a controlling statute, an annotated code can quickly give you a bird’s eye view of the statute in context . While most people use annotated codes to find case law discussing a statute, the annotations also include other information like relevant law review articles, Washington treatise sections, legislative history and commentary, and … applicable regulations.
You may be tempted to skip this step, but remember, when passing laws, legislators often draft the language in broad brushstrokes and task administrative agencies with effectuating the details. In essence, legislators create the broad statutory mandate and rely on agency expertise to fill in the gaps.
Do You Have a Map?
The reason that legislatures delegate rulemaking authority to administrative agencies is because the issues are complicated and require professional, subject matter expertise. Similarly, for researchers, delving directly into primary regulatory sources can be a fool’s errand. A better bet is to use the Marauder’s Map [2] of secondary research resources to help you uncover what may otherwise appear hidden to the naked eye. For example, while some Washington administrative regulations stand on their own, others work in tandem with federal regulations. Think securities or environmental regulations. A good secondary source will not only help you analyze the applicable Washington regulations but will also help you understand how federal regulations may fit into the context.
I generally start with the agency website. While the first few layers are usually intended for lay persons, more technical information can be found by delving deeper or using advanced searching. Next, I search the WSBA deskbooks, Washington Practice, and other Washington specific treatises before moving on to general jurisdiction treatises. If you need contemporaneous discussion of regulations from when they were created, law review articles from UW, SU, and Gonazga law schools and bar bulletin articles from that time period can often prove helpful, as can CLEs.
Do You Understand the Wizarding World?
Just like the Ministry of Magic [3], agencies wield quite a bit of power. They create regulations (a primary source of law), hold judicial proceedings, and can mete out fines and punishments. In order to effectively research administrative law, it’s good to have a baseline understanding of the administrative process. There are many mechanisms to keep agency powers in check, the most important of which is that agencies must have authority handed down to them before they can create rules. Rulemaking can be triggered by 1) a mandate from the state legislature, 2) a federal law or rule, 3) a court decision, or 4) a petition for rulemaking. Washington’s state Administrative Procedure Act ensures that the agencies are acting within the scope of their delegated authority for rulemaking and are fair and impartial in their adjudications.
The Washington Administrative Law Practice Manual is the go-to resource for understanding the intricacies of the rulemaking process and agency adjudications. For example: Can the agency’s proposed rule differ substantially from the final rule? See Chapter 7.06 [L]. Is hearsay allowed in administrative adjudications? See Chapter 9.05[E][1].
From What Swamp Did It Hatch?
Sometimes you’ll want to research the history of a regulation. While a Time Turner [4] would be nice, with a little bit of effort you’ll do just as well on your own. Much of your Washington regulatory history research will be done in the Washington State Register (WSR). Fortunately, most research from the mid-1990s forward can be done on-line. The Washington State Legislature’s website https://leg.wa.gov/ integrates regulatory history into Washington Administrative Code (WAC) entries. Just look for the bright yellow link that says, “Agency filings affecting this section” and you’ll be directed to the WSR entries for the proposed and permanent rules for the WAC you are researching.
A special point to consider. When doing a regulatory history, be sure to look for the Concise Explanatory Statement (CES). The concise explanatory statement is the method by which an agency ensures that it considered all the public comments/arguments as required by the Washington APA. It has been said that the CES is probably the most important document an agency must prepare in the rule-making process. [5] The CES is critical for determining whether agencies acted arbitrarily or capriciously when adopting the rule. Many agencies post their Concise Explanatory Statements on their websites. If you can’t find the CES you are looking for, just contact the agency and request it. If you commented on a rule during the rule-making process, the agency should automatically send you a copy.
Accio Law Library!
If you need more help researching Washington regulations or any other topic, use your summoning spell to contact the law library. Don’t worry, we don’t have a Restricted Section [6] of the dark arts and Madame Pince [7] will not be breathing down your neck when you use our resources. Email us at services@kcll.org and let us help you find and tame the fantastic beasts of Washington administrative law. In the words of Albus Dumbledore: “Help will always be offered to those who ask for it.”
1 See Harry Potter Glossary, available at https://www.bloomsbury.com/uk/discover/harry-potter/harry-potter-fun-stuff/harry-potter-glossary/ (Come and Go Room. Also known as the Room of Requirement, it is on the seventh floor of Hogwarts, opposite the Barnabus the Barmy tapestry. The room is sometimes there, sometimes not. It can only be entered by people with a real need, who must walk past the part of wall three times while concentrating on what they need. The room will then appear fully equipped with all their immediate requirements.)
2 Id (Marauder’s Map. A map that shows all the secret passageways and the current whereabouts of everyone in Hogwarts).
3 Id (Ministry of Magic. Government agency that tries to keep witches and wizards secret from non-magical people.)
4 Id (Time Turner. Hourglass that allows the wearer to travel back in time.)
5 See Washington Administrative Law Practice Manual [7.06][M] citing Aviation West Corp. v. Dep’t of Labor and Indus., 138 Wn.2d 413, 980 P.2d 701 (1999)
