and here we have  and we have catherine hendrix for the washington state department that good morning may please the court i'm scott bolen i represent king blossom natural which is a small business owned by robert and charlotte brody their business is growing organic apples and pears they've been so engaged since the late one nine hundred sixty s there are three issues we've ring for the courts today and ask for the court's consideration regarding first the arguments about raising constitutional issues for the first time at the trial court life level rather than at the administrative level second the issue of the failure to exhaust administrative remedies and third whether or not the washington administrative code provision in question is boyd and unconstitutional  administrative level i think it's fairly clear from the record that there were no constitutional arguments made at the administrative level therefore no constitutional arguments or whatever reason on appeal to the states a period court they were not  legally to hear and decide constitutional issues certainly the state superior court would be so situated to hear those issues those issues were not heard by the administrative court in any any fashion court and bring for the first time these constitutional issues i did on a different timing if you're going to appeal the administrative record can't you do it with one thirty or sixty games or whatever that's correct my understanding another tiny steep so the as it were procedural issues which were raised which did have constitutional lover tongues i would agree that he could not judge fletcher out raise the issue before the administrative tribunals about the timing in application of the regulations specifically just so i might explain very briefly the fruit in question which was embargoed and infused nitrogen and if you will be out this go to sleep and many months later you can remove them and sell them as if you had sold them right after harvest the argument before the administrative tribunal was that the regulation in question about inspection of every lot of fruit leaving controlled atmosphere storage was inactive in the middle of that time period after the fruit was placed into cold storage and before it was removed thereby depriv since we're in a taste test case and certainly has the flavor of the constitution or not however strictly not here are a constitutional argument and again we won't reach him it is it is in the sense an equal protection argument but not house in those terms not at the administrative level we were looking in can possibly after was looking at the process to determine whether or not it had been applied as as outlined not whether or not another grower received a more beneficial application of the process we were comparing if you will growers to growers or making a constitutional argument on those on that specific point that we concede here is my concern with your position yes so i'll just put it on the table and you can deal with it anywhere you want absolutely i don't think in the administrative proceeding you raise the you know the vagueness sort of the constitutional challenge that your various thing now that you've raised later was not heard at the administrative level clearly is constitutional issues were not brief not argued and not consider by the administrative body and in addition at the superior court level king blossom natural seeks monetary really something that the administrative agency cannot award and cannot provide under its own authority about the state supreme court could it have a clearly that's the right venue again your honor for that request to be mean but but that would not have been presence on appeal from the administrative body because the request for the administrative body is not for monetary belief and so it would be if you futility it would be futile to ask for this administrative body for money or to make a determination of their own regulations constitutionality and finally with respect to the pr itself and that's really the heart of the matter here the question is does this washington administrative code provision square with constitutional standards we believe it does not we believe there is no object of standard or the inspectors of the washington state department of agriculture don't know in cannot define what edible qualities means in fact one of the inspector says and it's in the record edible quality means the ab taste now in the small town we are from a place where you grow apples and so i ask a question on deposition well when you say absence of taste and it's in the record do what you mean what i mean starch enos and i said like th bud meaning like a potato and the answer was yes yes a very hard apple with no taste will pass inspection our argument is is that has nothing to do with edible qualities it's not possible for a grower to determine whether or not their apples will pass this edible qualities test because the inspector indicates they're looking for the absence of flavor  store situation but case all that we have cited indicates again that if people of common intelligence would be confused about what this statute means that certainly is a strong argument in favor of it words in question were in limited degree in a court found that those words in limited degree are difficult to define in a case by case basis there by the regulation in question was unconstitutional we think in limited certainly provides more definition than the term edible qualities when it's not attached to any sort of and a little call matrix or framework which would tell us inspector looking at a particular lot of pruett how do i determine fact this fruit exhibits edible qualities not to mention the fact that every inspector in deficit on the record provides this there are no regulations with respect to what they ingest whether they smoke whether they drink the effect in other words of their own consumption on their own ability to taste there is no objective measurement here whatsoever just a inspector at one point in time makes a determination about whether or not that's an edible quality apple and we find that it is unconstitutional one final point in that all deserve the balance of my time for a bottle the inspectors indicate and i think this is quite telling about this particular that they become experienced during the testing season that over time they gain experience by measurement like we all would just by business unconstitutional on the space and your honor i want to go back and judge lester in just point that you made earlier and i want to just talk about that historically for a moment and then i'll sit down originally in washington state what could happen was that any grower or warehouse could provide to the washington state department of agriculture a letter called a certificate of compliance which says that we warehouse your grower tell you department of agriculture that our fruit meets the quality and standards of washington state and it can be sold in the ordinary course and there would not be inspections and still going back to whether or not this would give us more room if we did away with the edible quality portions of the test well we had historically in washington state a tremendous amount of room if you will for the markets to determine whether or not washington apples are of the highest quality nationally and internationally and year after year season after season it has been proved that washington apples are at the top of the market in organic apples are the top of that mark and that is the kind of product that my client produced just that people have any additional questions  state department of agriculture inspector could evaluate the apples and issue a certificate to admissions viking blasts the natural remain central to this proceeding first of all they have  in august of one nine hundred ninety nine their apples were below grade under the standards that have been enough that since one thousand nine hundred ninety they also conceded at the time of the administrative seven zero subsection three a requires that the be raised in the administrating in the strait of proceeding because of course on judicial review they can be considered by the reviewing court and that rule in which the order is based is in violation of constitutional provisions on its face or as apply there was no question but that he had king blossom going on and so i judicial review of the final order  the record page seven they do address to cast a two tional issues first of all they talk about due process and due process was before the department of agriculture they also specifically state when they talk about not they had more than glimmer that there were issues that they could raise in could expand if you like as they then proceed to judicial review and i guess i can explain your honor that the usual process is that very often people are unrepresented if if the constitutional issue that's raised in the states appear court was not presented to the agency is the state's position that it's not properly presented in the superior court or  for that permissible i believe it would depend on the circumstances your honor i think here there's no question but that they had raised a constitutional issue and that they could have proceeded with that issue and they raised the issue there that they raised in the completely new and it's not anywhere in the testimony in the department of agriculture proceeding is the vagueness question and actually the testimony in those proceedings contradicts the testimony that's  the regulation needs down that the hearing doesn't have the authority to find its own regulation and constitutional well although the administrative procedure after honor does include the possibility of making a certainly know that under the equal access to justice act they would have had the ability to recover their attorneys fees which again we know that in the superior court proceeding they would have had the ability to claim damages and the only issue is whether we would be talking about the images at been appropriate but they would have had access to attorneys fees for challenging the regulation itself the exhaustion issue and the question of whether it is federal law or state log i would point the co that's discussed in our briefing and also within the state itself i'd like to talk more precisely about the language concerned with the faintness channel and two with sixteen for three one four two and also about the process as it was followed in this case the testimony in the were tasted and then as the third part when these samples failed they then used a machine that pressure tests the apple when it's a calibrated machine that each individual inspector carries it's unique to that inspector and so i think it's inappropriate to suggest that the taste test wasn't conducted in this case what happened was there was the physical pressure test the taste test the  still they still passed the pressure test twelve if you look at the plaintiff's complaint in this case they actually destroyed quite accurately the problem this is from the supplemental excerpt of the record when i was six the change in regulation to a full time online state certification came about as a result of the meeting between private industry and state government over a concern that and question fully makes it impossible to revisit that issue and retroactivity us crucial to all of the other issues that have been raised the constitutional issue if you have other questions for me i think i' the only concession in this case with respect to the apples in question was that the apples did not meet the twelve pounds per square inch requirement now there is no concession any time in the record or any time at with any degree of certainty or objectivity judgement dolman i had this discussion at oral argument at the trial court level where he indicated i can tell by looking at an apple whether or not it's going to taste good i think nothing of even a delicious new regulations yes the new regulation has been going on or has been going on for some time the change in this case was the inspection of every lot of fruit coming out versus the chip certificate compliance system where the grower in this case it standers it is edible fruit that people want to buy and are willing to pay the top price in the market for it and they can be gold riddle absolutely if they do that when they first sent it out to the stor the washington state department of agriculture is