IN THE COURT OF APPEALS, DIVISION II

OF THE STATE OF WASHINGTON

EMANUEL MCCRAY,
Respondents,

vs.

THE EMPLOYMENT SECURITY

DEPARTMENT OF THE STATE OF
WASHINGTON,
Appellants.

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Cause No. 47722-0-II

Clark County
Cause No. 15-2-00459-3

CLERK'S PAPERS
VOLUME I

TRIAL JUDGE: Suzan Clark

Counsel for Appellant:

Emanuel McCray
400 W McLaughlin Blvd., #5
Vancouver, WA 98660

11111111111111111111111111111111111111111111111111111111111111111

Counsel for Respondent:

Delia Anderson WSBA#24775
Attorney at Law
1220 Main St., Ste 510
Vancouver, WA 98660

IN THE COURT OF APPEALS, DIVISION IIOF THE STATE OF WASHINGTON

EMANUEL MCCRAY,

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Appellant,

vs.

THE EMPLOYMENT SECURITY

DEPARTMENT OF THE STATE OF
WASHINGTON
Respondent,

Court of Appeals
Cause No. 47722-0-II

Clark County

Cause No. 15-2-00459-3

INDEX

Sub#
-

No. of Pages

Page No.

Certificate - Clerk's Papers

12

21

Designation Of Clerk's Papers,

07/20/2015

11

14

Order Dismissing Petition For

Judicial Review, 05/22/2015

11

Petitioner's Reply In
Opposition To Respondent's
Motion To Dismiss,
05/21/2015

Page 1of1

FILED
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTo~l5 HAY
IN AND FOR THE COUNTY OF CLARK

21 AM 0 30
SCOTT G. WEBER. CLER~
CL f\t\l'\. COUNTY

Case No.: 15-2-00459-3

Emanuel McCray
Petitioner,

PETITIONER'S REPLY IN OPPOSITION

TO RESPONDENT'S MOTION TO
DISMISS

vs.

The Employment Security Department of

the State of Washington,
Res ondent.
COMES NOW Petitioner, Emanuel McCray, and for his response in opposition
urging denial of R.espondent's Motion To Dismiss, states:

I.

RELEVANT FACTS.

1.1

The Attorney General is the senior law enforcement officer in the State of

Washington and is presumed by the Court to be familiar with the laws of this State.
1.2

Hearings for ex parte motions are heard daily by the Superior Court at 1:OOp.m.

1.3

The Petition for Review was first presented for filing with the Superior Court on

Friday, February 13, 2015 at approximately 3:15p.m., which occurred after the time
scheduled for daily hearings on ex parte motions.
1.4

On Monday, February 16, 2015, the Superior Court was closed in observance of
\

a federal holiday commemorating Presidents' Day and Washington's Birthday.

1.5

The instant Petition for Review was filed on February 17, 2015 following the ex

parte hearing waiving fees. Subs. 1, 2, 3 and 4.

1.6

In its motion to dismiss, Subs. 7, 8 and 9, the Attorney General indicates, as

evidenced by postmarks, the mailing to its office and Respondent's office occurred on
Friday, February 13, 2015, and that the postage paid for each mailing, $3.08," was the
same, to wit:

Ill
Ill
Ill
Ill
Ill
PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

0-000000001
SLV

Emrun1e McCrnv
400 W Mclougl;lin nlvd., 115
Vartcouvcr, \'//\ 98660

OFFICE OF THE ATTORNEY GENERAL

Licensing and Administrative Law Division
1125 Washington Streat SE
P.O. Box40110
. Olympia, WA 98504..()1l0

See Exhibit 8 at page 18 of 18 attached to Attorney General's Memorandum of

Authorities In Support of Motion To Dismiss ("AG Memo"), Sub. 7.

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See Exhibit B at page 18 of 18 attached to the Declaration of Robert Page ("Deel.

Page").
1. 7

The February 13, 2015 postmarks are consistent with the Petitioner's "Certificate

of Service" on file with the Court at Sub. 4, a true and correct copy of which is attached
hereto.
PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

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1.8

For its motion to dismiss, the Attorney General further relies upon the Declaration

of Robert Page, who attached page 3 of the "DECISION OF COMMISSIONER," the

face of which informed Petitioner, among other things, that: (1) the time to appeal the
Commissioner's Decision was "within thirty days (30) from the date of mailing as shown
on the attached decision/order;" (2) a copy of Petitioner's "judicial appeal" may be
served by "mail or personal service within the thirty (30) day judicial appeal period on
the Commissioner of the Employment Security Department, the Office of the Attorney
General, and all parties of record;" and (3) a copy of Petitioner's "judicial appeal" served
on the Commissioner of the Employment Security Department "should be [personally]
served on or mailed to" the Commissioner of the Employment Security Department and
the Office of the Attorney General the Office of the Attorney General using the
addresses provided on page 3 of this Decision, to wit:
JUDICIAL REVIEW

If you are a party aggneved by the attached Commissioner's dec1s1on/order, your attention is
directed to RCW 34 05.510 through RCW 34 05 598. which provide that further appeal may be
taken to the Supenor Court With.in thirty (30) days from the date of mailing as shown on the
attached dec1s10n/order Ifno such appeal is filed, the attached decision/order will become final
If you choose to file a judicial appeal, you must both
Ttmely file your 3ud1c1al appeal d1rectly -w1th the Supenor Court of the county of your residence
or Thurston County. If you are not a Washmgton state resident, you must file your jud1c1al
appeal with the Supenor Court of Thurston County. See RCW 34 05 514. (The Department
does net furnish 3udicial apr,:>eal forms ) AND
Serve a copy of your JUdtc1al appeal by mail or personal service within the tlurty (30) day
judicial appeal period on the Comrrusstoner of the Employment Secunty Department, the Office
of the Attorney General, and all parties of record

'Ine

eopy of y-oui jud1c1a:1 appearyou- serve on ihe commissioner or tne-Empfoyrrieiif secUriiY--

Department should be served on or mailed to

Comm1ss10ner, Employment Secunty
Department, Attent1on: Agency Records Center Manager, 212 Maple Park Dnve. Post Office
Box 9046, Olymp1a, WA 98507-9046. To properly serve by mall, the copy of your Jud.mal
appeal must be received by the Employment Secunty Department on or before the th11:treth (30th)
day of the appeal penod See RCW 34.05 542(4) and Vi AC 192-04-210 The copy of your
JUd1c1al appeal your serve on the Office of the Attorney General should be served on or mailed to
the Office of the Attorney General, Licensing and Adm1rustrat1ve Law Diviswn, 1125
Washington Street SE, Post Office Box 40110, Olympia, WA 98504-0110

See Exhibit 1 at page 3 of 4 attached to Deel. Page. See also, Exhibit 1 at page 3 of 4
attached to AG Memo.
1.9

The faces of the February 13, 2015 mailings reflect the addresses used in these

mailings are consistent with the addresses provided by Respondent in its final order.

PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

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Declarant Page further indicated in paragraph 4 of his Declaration at page 2 that

Respondent received a copy of Petitioner's "Errata Sheet" on February 18, 2015, to wit:

Emanuel McCray
400 W McLoughlin l3ivd., #'.';
Vancouver, WA 98660

COMMISSIONER
Employment Sec~mw Del'artment
Attn Al1)ency Reoeirds Center Manalilf
212 Maple Park Dnve
P.O Bex9048
Olympia, WA 98507-9G48

See Exhibit A at page 3 of 3 attached to Deel. Page.

1.10

The face of the aforementioned mailing indicates it was postmarked on February

14, 2015. The face of Exhibit Bat page 18of18, which Declarant Page attached to his
Declaration, indicates this mailing was postmarked on February 13, 2015. Declarant
Page indicated in paragraph 5 of his Declaration at page 2, that Respondent received a
copy of Petitioner's "Petition" on February 19, 2015.
1.11

Declarant Page further informed the Court in paragraphs 3 and 4 of his

Declaration of what he described as Respondent's "accurate method of managing our

incoming petitions for judicial review."
1.12

Respondent's mail handling system indicates that Petitioner's "Errata Sheet,"

which was mailed one day after Petitioner's Petition for Review on February 14, 2015,
was received by Respondent on February 18, 2015; and that Respondent's Petition for
Review, which was mailed on February 13, 2015, one day earlier than Petitioner's
"Errata Sheet," was received by Respondent on February 19, 2015, one day after
receipt of Petitioner's "Errata Sheet."
1.13

Neither the Attorney General nor the Declarant make any effort to explain how

the government's mail handling system was capable of receiving and recording a
mailing made on February 14, 2015 before a mailing that was made one day prior on
February 13, 2015.
PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

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1.14

In further support of his motion to dismiss, the Attorney General relies upon

Respondent's "CERTIFICATE OF SERVICE" which fixes January 16, 2015, the date of
the mailing of the "Decision of Commissioner," as the trigger and period for service
"within thirty (30) days" of the Commissioner's Decision, to wit:
CERTIFICATE OF SERVICE
I certify that I mailed a copy of this dec1s1on to the i.v1thtn
named interested parties at the
ecttve addresses. postage
prepaui~ on January l 6~ 20 l 5
--~.,.,.-

...........__,,,

Representative.. Comm1ss1oner"s Rev1 w 0

Employment Secunty Depanntent

II.

LEGAL AUTHORITY.

2.1

It is undisputed that Petitioner mailed copies of the Petition for Review on Friday,

February 13, 2015, as evidenced by postmarks.

2.2

The Attorney General's motion to dismiss and his supporting legal arguments are

not well taken. Legislative enactments and court rules must be the same for all parties
to the Petition for Review.
2.3

The Attorney General's motion to dismiss and the Declaration of Robert Page in

support thereof describe a government mail handling system that: (1) is fatally flawed,
and (2) attaches blame for the flaws in its mail handling system on Petitioner.
2.4

In RCW 34.05.542, the Legislature fixed the time for filing a petition for judicial

review and for service of the petition on "all parties" to occur "within thirty days after
service of the final order." RCW 34.05.542(2).
2.5

In RCW 34.05.010(19), the Legislature defined the term "service" and fixed the

time of "service" as:

"Service," except as otherwise provided in this chapter, means posting in
the United States mail, properly addressed, postage prepaid, or personal
or electronic service. Service by mail is complete upon deposit in the
United States mail. Agencies may, by rule, authorize service by electronic
transmission, or by commercial parcel delivery company." RCW
34.05.010(19).
2.6

In 1967, Civil Rule 1 became generally applicable to all civil proceedings except

where stated in Civil Rule 81. See Emwright v. King Cy., 96 Wn.2d 538, 637 P.2d 656
(1981) (procedural rules are those necessary to the operation of the courts). Petitions
PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

0-000000005

for judicial review of administrative actions are "civil proceedings" within the meaning of
Civil Rule 81.
2.7

Complete rules in Chapter 34 RCW, Administrative Procedure Act, (APA), will

generally prevail over the civil rules. However, Chapter 34 does not contain a complete
rule regarding the calculation of days for the purpose of calculating the "thirty days after
service of the final order." There also is not a provision regarding whether the "days"
referred to in the statute are: legal holy days, business days, court days or calendar
days.
2.8

However, in RCW 34.05.010(19), the Legislature fixed the time of "service" by

providing in relevant part that: "Service by mail is complete upon deposit in the United
States mail."
2.9

Statutory interpretation is a question of law which is reviewed de novo. Dep't of

Labor & Indus. v. Gongyin, 154 Wn.2d 38, 44, 109 P.3d 816 (2005). A court's prime

construction objective is to "carry out the legislature's intent." Oep't of Ecology v.

Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002).

2.10

The APA statute provides a service window. While application of Civil Rule 6 as

the method of computing time would give effect to both Civil Rule 6 and the APA's
statutory service window, it is unnecessary for the Court to defer to CR 6. Applying
RCW 34.05.010(19) to mean what it says, that service of the Commissioner's Decision
was complete on January 16, 2015, it would follow that service of the Petition for
Review on all parties was complete on February 13, 2015, as evidenced by the same
postmarks relied upon by the Attorney General in his motion to dismiss. Such a
construction is particularly appropriate given the fact that the Court must apply the same
statutory construction to all parties.
2.11

Further, RCW 34.05.010(19) is an expression of sound public policy. All litigants

are put on notice that: "Service by mail is complete upon deposit in the United States
mail." Construed as such, the statute eliminates traps for the unwary who seek to assert
or defend their rights. Stikes Woods Neighborhood Ass'n v. City of Lacey, 124 Wn.2d
459, 463, 880 P.2d 25 (1994).
2.12

Courts have a vital interest in maintaining control over the administrative

functioning of the litigation process. Computation of time is a fundamental element of

PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

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that administration. Consistent application of RCW 34.05.010(19) will also lend

predictability to the statute and the law construing it.
2.13

Finally, justice requires the Court to provide litigants with a guaranteed level of

protection. Failing to apply RCW 34.05.010(19) to the time Petitioner deposited copies
of his Petition for Review in the mail would have the practical effect of creating
uncertainty for litigants where none exists under RCW 34.05.010(19).

Ill.

CONCLUSION.

3.1

It is undisputed that Respondent mailed a copy of its Decision on January 16,

2015.
3.2

It is further undisputed that Petitioner caused all parties to be served with copies

of the Petition for Review on Friday, February 13, 2015.

3.3

It is further undisputed that Petitioner's mailings which occurred on Friday,

February 13, 2015 were "within thirty days after service of the final order," within the
meaning of RCW 34.05.542(2).
It is 'further undisputed that service by mail upon all parties was complete on

3.4

Friday, February 13, 2015, within the definition and meaning set forth in RCW
34.05.010(19).
3.5

It is further undisputed that the postage paid, "$3.08," tends to indicate that all

parties received similar copies of the Petition for Review.

2.6

Thus, Respondent and all other parties were timely served "within thirty days" on

Friday, February 13, 2015 within the meaning of RCW 34.05.010(19) and RCW
34.05.542.
WHEREFORE, Petitioner prays that Respondent's Motion To Dismiss be denied.

Respectfully submitted,
Dated: May 15, 2015

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Cbcyy.J.fJ'Fle ~ ,_.

~/Emanuel McCray
Petitioner

PETITIONER'S REPLY IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

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IN THE SUPERIOR COURT OF THE STATE NO. _ _

OF WASHINGTON IN AND FOR THE
COUNTY OF CLARK
CERTIFICATE OF SERVICE

Emanuel McCray
Petitioner,
vs.
The Employment Security Department of the
State of Washington,
Respondent.
I hereby certify that true copies of the PETITION FOR JUDICIAL REVIEW OF
ADMINISTRATIVE ORDER were mailed in a sealed envelope with postage fully
prepaid, addressed as indicated below.
The certification occurred at Vancouver, Washington on February 13, 2015. The
mailing occurred at Vancouver, Washington on February 13, 2015.
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Submitted this 13th day of February 2015.

Ir /1. .
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~

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Emanuel McCray

COMMISSIONER
Employment Security Department
Attn: Agency Records Center Manager
212 Maple Park Drive
P.O. Box 9046
Olympia, WA 98507-9046

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OFFICE OF THE ATTORNEY GENERAL

licensing and Administrative Law Division
1125 Washington Street SE
P.O. Box 40110
Olympia, WA 98504-0110
PIZZA HUT
NPC International, Inc.
Pittsburg, KS 66762-2844

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STATE OF WASHING TON

CLARK COUNTY SUPERIOR COURT

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NO. 15-2-00459-3

EMANUEL MCCRAY,

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Petitioner,
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ORDER DISMISSING PETITION FOR

JUDICIAL REVIEW

v.
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STATE OF WASHINGTON
DEPARTMENT OF EMPLOYMENT
SECURITY,

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Respondent.
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This matter came on before the above-entitled court on May 22, 2015, on Respondent's

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motion to dismiss the Petitioner's petition for judicial review. The court having considered the

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parties' arguments and having reviewed the record, hereby rules as follows:

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this action be

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dismissed for lack of subject matter jurisdiction without costs to either party. Petitioner failed to

20 invoke the appellate jurisdiction of this court because he failed to serve Respondent Department
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of Employment Security with his petition for judicial review by the 30-day deadline of

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RCW 34.05.542(4). Petitioner's timely service on the Office of the Attorney General was not

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sufficient to invoke this court's appellate jurisdiction under RCW 34.05.452(6), because the

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)

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II

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II

ORIGINAl. ORDER DISMISSING PETITION FOR .

JUDICIAL REVIEW

ATTORNEY GENERAL OF WP---------1220 Main Street, Suite

Vancouver, WA 9866v
(360) 759-2100
EAR

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,,

Office of the Attorney General was not the attorney of record for the Respondent at thattime.

Cheek v. Employment Security Department, 107 Wn. App. 79, 83, 25 P.3d 481 (2001).

DATED this

g'.t,.ti,~fMay, 2015.

. .

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Presented by:

ROBERT W. FERGUSON

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Copy Received, Consent ~o Entry and

Notice of Presentation Waived:

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ORDER DISMJSSING PETITION FOR

JUDICIAL REVIEW

ATTORNEY GENERAL OF WJ. ~-rn-~m~1220 Main Street,

Vancouver, WA 9866v
(360) 759-2100 .

Suite0-00000001 0

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FILED

JUL 2 0 2015

<&'.<15'

Scott G. Weber, Clerk, Clark Co.

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF CLARK

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) Court of Appeals No. 47722-0-II

)
Petitioner,) Clark County No. 15-2-00459-3
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vs.
)
) DESIGNATION OF CLERK'S PAPERS
The Employment Security Department of the )
)
State of Washington,
Respondent.)
~~~~~~~-'---~~~~~~~)
Emanuel McCray

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TO THE CLERK OF THE COURT

Please prepare and transmit to the Court of Appeals, Division II, the following clerk's
papers:
Sub No.
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Document
Respondent's Motion To Dismiss
I Order of Dismissal (JDG0008)

I Reply In Opposition To

Respectfully submitted,

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Dated: July 17, 2015

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~~{1~ //Ile~

2425
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Date
I 05-21-2015
I 05-22-2015

400 W Mcloughlin Blvd., #5

Vancouver, WA 98660
(858) 876-4833
emanuel.mccray@hotmail.com

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DESIGNATION OF CLERK'S PAPERS

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR CLARK COUNTY

EMANUEL MCCRAY,
Respondent,

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No. 15-2-00459-3

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vs

THE EMPLOYMENT SECURITY

DEPARTMENT OF THE STATE
OF WASHINGTON,

CERTIFICATE - Clerk's Papers

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Appellant
STATE OF WASHINGTON,}
County of Clark,}
I, Scott G. Weber, Clerk of the Clark County Superior Court, do hereby
certify that the foregoing are full, true and correct copies of the record and
files in the above-entitled cause as I have been directed to transmit to the
designated appellate court.
IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of
said Superior Court this 22nd day of July, 2015.
SCOTT St,: ~B~, COUNTY CLERK
~~~
By~--~~--~~

Sarah Vignali, Deputy Clerk

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