Weyerhaeuser v. Pierce County

Madsen, J.

(concurring in part, dissenting in part) — Because the majority would unjustifiably expand the notion of "fairness” far beyond any cross examination right previously accorded in a public hearing of this nature, I respectfully dissent with respect to this portion of its opinion. Contrary to time-honored rules of statutory construction, the majority tortures the Pierce County Hearing Examiner Code (the Code), Pierce County Code (PCC) ch. 2.36, to reach its dubious result. Then, claiming that a due process analysis is unnecessary to support its reading of the Code, the majority goes beyond the Code and asserts incorrectly that its conclusion is supported by due process case law, citing Goldberg v. Kelly, 397 U.S. 254 , 25 L. Ed. 2d 287 , 90 S. Ct. 1011 (1970). The majority then compounds the confusion by ignoring the fact that any consideration of the issue of cross examination outside the Code is inexorably tied to due process. The result of these machinations is to convert an already time-consuming public hearing procedure into an outright marathon.

First, PCC 2.36.090 contains a number of significant words and phrases, only one of which the majority gives effect in its analysis. PCC 2.36.090 reads:

The Examiner shall have the power to prescribe rules and regulations for the conduct of hearings before the Examiner; and also to issue summons for and compel the appearance of witnesses, to administer oaths, and to preserve order. The privilege of cross-examination of witnesses shall be accorded all interested parties or their counsel in accordance with the rules of the Examiner.

Under longstanding rules of statutory construction, " 'a statute should be interpreted so as not to render one part inoperative”. Xieng v. Peoples Nat’l Bank, 120 Wn.2d 512, *49 530 , 844 P.2d 389 (1993) (quoting Davis v. City & Cy. of San Francisco, 976 F.2d 1536 (9th Cir. 1992). (quoting South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 , 510 n.22, 90 L. Ed. 2d 490 , 106 S. Ct. 2039 (1986))). "[Statutes must be read in their entirety, not in a piecemeal fashion” and all the language used must be given effect. Vaughn v. Chung, 119 Wn.2d 273, 282 , 830 P.2d 668 (1992); In re Marriage of Timmons, 94 Wn.2d 594, 600 , 617 P.2d 1032 (1980). If unclear, words are to be given their "plain and ordinary meaning”. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813 , 828 P.2d 549 (1992). "If the Legislative intent or meaning of a statute is unclear, the meaning of doubtful words may be determined through their relationship to associated words and phrases.” State v. Rice, 120 Wn.2d 549, 560-61 , 844 P.2d 416 (1993). Courts must not focus on individual words in a statute alone, but must consider the language of the statute as a whole, its underlying policies, and the language and underlying policies of the entire act of which it is part. Vaughn , at 282. Statutes are to be construed so as to effect their underlying purpose and avoid "unlikely, absurd or strained consequences”. Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 189 , 829 P.2d 1061 (1992) (quoting State v. Fjermestad, 114 Wn.2d 828, 835 , 791 P.2d 897 (1990)).

By singling out the words "shall be accorded” as determinative of the issue of cross examination, the majority ignores these rules. When read as a whole, the ordinance cannot be construed to "require” cross examination of the county staff as the majority holds. PCC 2.36.090 first states that the examiner "shall have the power to prescribe rules and regulations for the conduct of hearings”. This power is not limited in the ordinance. Then, PCC 2.36.090 states that the examiner "shall have the power ... to issue summons for and compel the appearance of witnesses”. This language does not require the examiner to compel the appearance of witnesses but only gives the examiner the power to do so. This statement also follows language giving the examiner the power to set up rules and regulations. The next sentence *50 says that the "privilege of cross-examination of witnesses shall be accorded all interested parties or their counsel in accordance with the rules of the Examiner”. (Italics mine.) PCC 2.36.090. While PCC 2.36.090 uses the phrase "shall be accorded”, it is qualified in that any cross examination is "in accordance with the rules of the Examiner”. Moreover, the sentence uses the word "privilege”, not the word "right”. The sentence further limits the privilege of cross examination to "witnesses”.

While the ordinance does not define the word, "witness” is used primarily in reference to individuals testifying under oath before a judicial tribunal. Instead of adopting the common understanding of the term, the majority relies on less recognized definitions which include potential or proposed testifiers or those who provide evidence. See Black’s Law Dictionary 1603-04 (6th ed. 1990); Webster’s Third New International Dictionary 2627 (1986). However, when something beyond witnesses who testify is meant, a distinction usually will be made by either including the modifier "non-testifying” before the term witness or by discussing these individuals differently. See, e.g, Pavlik v. United States, 951 F.2d 220, 224 (9th Cir. 1991). The modifier is not used here, nor is any distinction made. Further, if the ordinance had intended that all individuals who could potentially provide adverse evidence must be called, as the majority asserts, it would "compel” rather than "empower” the hearing examiner to subpoena them. 5 Instead, the language when read as a whole supports the conclusion that the fact and manner of cross examination are to be determined by the hearing examiner and are not due as a matter of law. The majority’s interpretation ignores the ordinary meaning of the term "witness” and would render the remaining language in the ordinance, other than "shall be accorded”, inoperative.

*51 Next, the majority cites only one of the professed purposes behind the Code to support its conclusion and ignores the remaining purposes which do not. PCC 2.36.010 recognizes:

A. The need to separate the County’s land use regulatory function from its land use planning function;

B. The need to ensure and expand the principles of fairness and due process in public hearings; and

C. The need to provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters; it is the purpose of this chapter to provide an administrative land use regulatory system which will best satisfy these needs.

The resolution adopting the Code also states:

[T]he Board . . . believes that a land use hearing examiner system will be very beneficial to all concerned or involved with land use decisions, and said system will (1) provide a more efficient and effective land use decision procedure; (2) provide the Planning Commission more time to devote towards studying and recommending land use policy changes to the Board; (3) provide an experienced expert to hear and decide land use cases based upon policy adopted by the Board; and (4) provide the Board of County Commissioners more time to spend on other County concerns by relieving them from hearing land use cases, except any appeals . . .[.]

Pierce County Resolution 20489 (1978).

While the Code was intended to expand principles of fairness and due process in public hearings, it is an unwarranted conclusion that the Code intended that public hearings’ procedures should be "expanded” to those of a regular trial. A public hearing is meant to be a different creature altogether and serve different purposes. "The purpose of the hearing may range from the determination of a specific past event ... to an endeavor to ascertain community feeling about a proposed change in zoning or to determine the efficacy of a new drug.” Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 , 1270-71, 1277-79 (1975). As Justice Frankfurter explained, "differences in the origin and function of administrative agencies 'preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of the courts’ ”. Friendly, at 1269. The term "hearing” may connote *52 a written rather than oral hearing or a different panoply of procedures in any given case. Friendly, at 1270-71.

Further, the Code also provides that in addition to its purpose to "expand” these principles, it intends "to provide an efficient and effective land use regulatory system”. (Italics mine.) PCC 2.36.010. Without the county employees’ testimony, the hearing took 10 days of testimony and arguments, not including the time the examiner needed for consideration and preparation of a decision. The hearing examiner took an additional day of testimony on remand. These numbers do not even account for the hours the planning department and other agencies spent considering the option and preparing the reports. Moreover, the County is required to prepare these advisory reports in a significant number of cases before the hearing examiner. See PCC 2.36.080. To require county employees to testify in each of these cases would unduly burden the planning department in performing its functions despite the intent of the Code to free the department up to do so. In short, the majority’s decision today would, without any solid basis, ignore rules of statutory construction and undermine the Code’s purpose in favor of its own construction. The majority’s interpretation robs the examiner of his statutory discretion and the provision of its enacting purpose — to release the planning department from this part of the process. Without clear language in PCC 2.36.090, or elsewhere in the Code that such a procedure is required, I cannot agree with the majority’s reading.

Secondly, the majority’s analysis of whether cross examination is required in a particular case independent of the PCC is confusing, misleading, and incorrect. While the majority asserts that it need not reach the issue of due process, the question of required cross examination in civil hearings as a general matter is inextricably tied to such issues because the confrontation clause only applies to criminal proceedings. See SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735 , 81 L. Ed. 2d 615 , 104 S. Ct. 2720 (1984). When articulating its purposes, the Code itself incorporates the *53 issue of due process as well. The majority in fact acknowledges this when it cites Goldberg .

As a general rule, due process does not require the result advocated by the majority, despite what the majority attempts to imply. Adverse witnesses need not be compelled to testify in a civil hearing. See, e.g., Thomas v. Baker, 925 F.2d 1523, 1525-26 (D.C. Cir. 1991) (agency officer who wrote a recommendation). Moreover, "confrontation and cross-examination of those furnishing evidence against” an individual’s position are not required in administrative hearings. Wolff v. McDonell, 418 U.S. 539, 567 , 41 L. Ed. 2d 935 , 94 S. Ct. 2963 (1974); sec also Pavlik, 951 F.2d at 224-25 (agency investigator); Chmela v. Department of Motor Vehicles, 88 Wn.2d 385, 392-93 , 561 P.2d 1085 (1977) (police report author); Johnston v. Grays Harbor Cy. Bd. of Adj., 14 Wn. App. 378, 383-84 , 541 P.2d 1232 (1975) (environmental impact statement author). Hearsay evidence can be used and relied upon in administrative hearings. See RCW 34.05.452(1); 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 10.4 (3d ed. 1994); Washington Administrative Law Practice Manual § 9.09, at 9-57.0 through -57.1 (Richard A. Finnigan et al. eds. in chief 1992). Even courts which have held that in a given case, parties should be allowed to cross-examine authors of reports, have acknowledged that such a call is within the administrative judge’s discretion and have limited their holdings to the facts. See Demenech v. Secretary of Dep’t of Health & Human Servs., 913 F.2d 882 (11th Cir. 1990); Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1989); but see Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990), cert. denied, 114 L. Ed. 2d 725 (1991); Coffin v. Sullivan, 895 F.2d 1206 (8th Cir. 1990). 6 In a given administrative hearing, what is required by due process depends upon first identifying the interest protected by due process and then upon balancing the factors enumer *54 ated in Mathews v. Eldridge, 424 U.S. 319 , 47 L. Ed. 2d 18 , 96 S. Ct. 893 (1976).

To constitute a protected interest requiring due process protection, a government action must "constitute the impairment of some individual’s life, liberty or property”. 2 Ronald D. Rotunda & John E. Nowak, Constitutional Law: Substance and Procedure § 17.2 (2d ed. 1992). "Where government actions adversely affect an individual but do not constitute a denial of that individual’s life, liberty or property, the government does not have to give the person any hearing or process whatsoever.” Rotunda & Nowak § 17.2, at 581. The Supreme Court has given the phrase "life, liberty or property” restrictive meaning and no procedure is due unless an alleged interest falls within this meaning. Generally, liberty interests are derived from "those provisions of the Bill of Rights which the Court deems to be 'incorporated’ into the due process clause as well as 'fundamental rights’ which are derived either from the concept of liberty or other constitutional values”. Rotunda & Nowak § 17.4, at 597. Property interests are derived from constitutional limitations on the government’s ability to define or limit property rights such as the First Amendment, equal protection, and substantive due process. Rotunda & Nowak § 17.5. The majority cites no constitutionally protected interest in this case which would entitle the Weyerhaeusers to cross-examine adverse, nontestifying witnesses. 7

When a protected interest exists, the procedural protections required by due process will still differ from case to case. Mathews states that which procedural safeguards are required in any hearing that would deprive any individual of a protected interest depends upon "consideration of three distinct factors”:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and *55 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews , at 335. The Court further noted that "[t]he judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances”. Mathews , at 348. "All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard,’ to insure that they are given a meaningful opportunity to present their case.” Mathews , at 349 (quoting Goldberg, 397 U.S. at 268-69 ).

Even if the protected interest problem could be overcome in this case, the Mathews analysis does not support the majority’s result. First, the risk of erroneous deprivation and the probable value of allowing cross examination of county staff in. this case are small because the reports at issue here could be effectively criticized without calling the county employees who wrote them. The Weyerhaeusers and others opposing the conditional use permit were able to call witnesses, present evidence to rebut the reports’ recommendations, and cross-examine their opponents’ expert witnesses. They also had an opportunity to ask county employees written questions. Lastly, the administrative burden adopting such a procedure would impose outweighs any small benefit. If such a procedure were to be imposed, county employees would have to testify in every case before the hearing examiner. Hearings would be significantly longer without much reason because the same or unnecessary information would be elicited. It would therefore be a great imposition on the County and the hearing process if county employees were to be subject to oral examination on these reports. Such a requirement could interfere with the County’s performance of its functions and would be contrary to the articulated purposes for which the Code was enacted.

The facts and holding of Mathews itself also contradict the majority’s reasoning. The Court held that even the decision to terminate protected disability benefits could be made *56 based completely on written submissions and written medical reports and did not require an evidentiary hearing. The Court stated that "while there may be 'professional disagreement with the medical conclusions’ the 'specter of questionable credibility and veracity is not present.’ ” Mathews , at 344 (quoting Richardson v. Perales, 402 U.S. 389, 404 , 28 L. Ed. 2d 842 , 91 S. Ct. 1420 (1971)).

Instead of evaluating this issue in light of Mathews , the majority’s holding implies that an unprotected interest would receive more procedural protection than a protected interest. It then erroneously cites Goldberg as supporting its position. First, in so doing, the majority ignores that Goldberg was uniquely tied to the protected interest at issue, the termination of welfare benefits, an interest quite unlike and far more important than any in debate here. Second, the majority fails to note that the Supreme Court has not said anything similar since that case and in fact, while not overruling it completely, has significantly limited its meaning in subsequent progeny. See Mathews, 424 U.S. at 333 ("In only one case, Goldberg v. Kelly , . . . has the Court held that a hearing closely approximating a judicial trial is necessary.”); Davis & Pierce § 9.5, at 51 ("Goldberg is the only case in which a majority of the Court has held that due process requires an agency to provide a trial-type hearing before it takes an action that deprives an individual of an interest protected by due process.”).

Finally, sound policy does not dictate the majority’s result. Commentators have astutely pointed out that in administrative proceedings, cross examination yields little benefit and its main effect is more often delay. See Davis & Pierce § 9.5, at 48; Friendly, at 1283-86. Credibility attacks through cross examination are generally not very useful when a witness is an expert either. 1 Charles H. Koch, Administrative Law and Practice § 6.25 (1985). Davis & Pierce argue that requiring the confrontation and cross examination of report authors would actually cause administrative decisions to be less accurate. Davis & Pierce § 9.11.

*57 In conclusion, without clear language in the ordinance, any holding that cross examination of the authors of adverse reports is required is not justified given the limited benefit, if any, such a procedure could yield and the costs such a procedure would entail. As the ordinance alludes, the decision as to the procedures merited under PCC 2.36.090 best rests with the hearing examiner. This conclusion comports both with the law and sound policy.

Durham, J., concurs with Madsen, J.

Reconsideration denied September 27, 1994.

In fact, the provision does not give interested parties any right to subpoena or call witnesses. This omission works against the majority’s conclusion as well because if the Code truly intended to "require” cross examination of all adverse individuals, it would have, at a minimum, contained language regarding such important issues.

Highly regarded administrative commentators Davis and Pierce point out that these cases only rely on dicta in Richardson v. Perales, 402 U.S. 389 , 28 L. Ed. 2d 842 , 91 S. Ct. 1420 (1971), and argue against such a conclusion. 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 9.11 (3d ed. 1994).

Nor does the majority argue that PCC 2.36.090 itself creates due process protection. See In re Cashaw, 123 Wn.2d 138, 145 , 866 P.2d 8 (1994); Conard v. UW, 119 Wn.2d 519, 529 , 834 P.2d 17 (1992), cert. denied, 126 L. Ed. 2d 59 (1993).