Zehring v. City of Bellevue , 99 Wash. 2d 488 ( 1983 )

Utter, J.

(dissenting) — I dissent inasmuch as this opinion perpetuates the unfortunate morass this court has constructed in the development of its appearance of fairness doctrine. For reasons I have expressed in my concurring opinion in Harris v. Hornbaker, 98 Wn.2d 650, 658 P.2d 1219 (1983), I believe the doctrine is unwise, unnecessary and unfathomable. This is illustrated by the fact that the majority in Hsarris, written by Justice Brachtenbach, expressly rejects the application of the doctrine as being mandated by a legislatively required hearing. There the court stated, at page 660:

A statutory public hearing by a legislative body is not the talisman for invoking the appearance of fairness doctrine. If it were, we would unfairly constrain the Legislature in its attempt to provide opportunities for public participation in legislative decisions. If by requiring a public hearing the Legislature would implicitly force its subdivisions to adhere to a full panoply of adjudicatory safeguards, it might well decide to eliminate such hearings altogether. Prior cases should not be interpreted as indicating that a decision becomes quasi judicial and triggers the appearance of fairness doctrine by the mere fact that a hearing is required by statute. See Polygon Corp. v. Seattle, 90 Wn.2d 59, 67-68, 578 P.2d 1309 (1978).

In this case we return to the concept repudiated in Harris and even cite Polygon Corp. v. Seattle, 90 Wn.2d 59, 578 P.2d 1309 (1978) as supporting the required application of the appearance of fairness doctrine to public hearings required by law. The majority states, after citing Polygon, at pages 495-96.

The appearance of fairness doctrine applies to required hearings because "[t]he fact that these hearings are required is itself recognition of the fact that the decision making process must be more sensitive to the rights of the individual citizen involved." Fleming [v. Tacoma, 81 Wn.2d 292, 299, 502 P.2d 327 (1972)].

From the above cases, a rule may be formulated that whenever an administrative body, acting in a legislative or quasi-judicial capacity, conducts a public hearing, required by law, to decide the rights of individual parties to engage in or refrain from some activity, the appearance of fairness doctrine should apply.

It may be that these statements are reconcilable, but I have difficulty in doing so. What is more, I am certain the lawyers of this state will have great difficulty with an already obscure doctrine when we ourselves are at best uncertain as to its jurisprudential roots and how it should be applied. As stated in my concurring opinion in Harris, I see no reason why fact finders should be held to any standards beyond those required of judicial officers. If we were to apply such a rule, as I have further elaborated in my Harris concurring opinion, we would have a long developed, substantial body of law which lawyers, citizens and government could apply without the unnecessary confusion we now engender. I would affirm the trial court and reverse the Court of Appeals.

Stafford, Dolliver, and Dimmick, JJ., concur with Utter, J.

Reconsideration granted by Supreme Court October 11, 1983.