What Ever Happened to the Appearance of Fairness Doctrine? Local Land Use Decisions in an Age of Statutory Process

• Publication year: 1997

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 3WINTER 1998

What Ever Happened to the Appearance of Fairness Doctrine? Local Land Use Decisions in an Age of Statutory Process

W.T. Watterson

I. Introduction

In our society, it is an article of faith, as well as of constitutional law, that a judicial hearing must be fair to the parties involved, both in its actual conduct and in its appearance. Today, many hearings on public actions are conducted not by judges but by elected officials, appointed boardmembers, administrative staff, and professional adjudicators. The individual rights at issue in these actions are often as important as those resolved in judicial courtrooms. Yet it has never been clear whether we can hold nonjudicial adjudicators and their proceedings to the same standards of fairness we expect from judges-and, if we should, how best to do so.

All states have codes of judicial conduct that unambiguously require judges to maintain integrity and impartiality and to avoid personal entanglements, both in actual judicial conduct and elsewhere, in order to promote public confidence in the judiciary.(fn1) Judges must disqualify themselves whenever they have bias or prejudice concerning parties, personal knowledge of disputed facts, or personal interest connected to the matter.(fn2)

All states guarantee constitutional due process and fairness for both judicial and quasi-judicial proceedings. They differ, however, on the legal standard of fairness to apply to quasi-judicial proceedings. Many states rely on due process guarantees, that is, a proceeding which is fair in actual substance and procedure.(fn3) Washington, however, has adopted more of the judicial standard for quasi-judicial actions, requiring "a hearing not only fair in substance, but fair in appearance as well."(fn4) This "appearance of fairness doctrine" was originally developed within the context of local land use decisions.(fn5) Later, it was applied to a broader spectrum of administrative proceedings.(fn6)

Applying judicial standards to a diverse assortment of quasi-judicial decision makers and proceedings has been fraught with difficulties. Foremost is the fact that many local land use decisions are made by legislative bodies, composed of elected officials who have policy positions and personal contacts, creating a "conflict in values."(fn7) The Washington Legislature has exempted from the doctrine purely legislative actions and some political activity, but the problem persists.(fn8) What constitutes an appearance of unfairness is determined through the eyes of a "reasonably prudent and disinterested observer."(fn9) This standard, however, leaves considerable uncertainty for the decision makers and much discretion to the courts.

In recent years, Washington courts have exhibited an unwillingness to find violations of the appearance of fairness doctrine, even with significant evidence of unfairness.(fn10) At the same time, the statutory landscape for land use project review and approval has changed dramatically, becoming more public and technical and resulting in greater professional staff involvement and less discretion for legislative bodies and planning commissions.(fn11)

Although the appearance of fairness doctrine is indisputably still good law, the question today is whether courts will apply it. And, if courts will not apply the doctrine, then the question is what procedural standard applies to quasi-judicial decision makers and how that standard fits within the framework of land use statutes enacted in recent decades. To address this question, this Comment first traces the evolution of the doctrine from its initial announcement by the court to the most recent decisions. Part III then examines the enforcement and ambiguity problems posed by the doctrine today. Part IV evaluates whether the doctrine has become increasingly irrelevant because of the ever-expanding procedural protections in statutes governing land use decision making.

The conclusion from this analysis is that this emergent statutory scheme has greatly increased public participation in, and scrutiny of, land use project proposals, has reduced the role of the legislative bodies to which the original doctrine was addressed, and has given much more decision-making authority to professional staff and adjudicators. A further consequence of this statutory supplantation has been a judicial modification of the doctrine, transforming the doctrine's standard into an approximation of constitutional due process. As a result, today's courts are unlikely to invoke the appearance of fairness doctrine to protect the public interest even though violations of the doctrine still can and do occur, and the doctrine has been relegated to an inactive status as a relic of the needs of an earlier generation.

II. Evolution of the Appearance of Fairness Doctrine

The roots of the appearance of fairness doctrine extend well back into Washington's history, but its modern incarnation began with a court decision in 1969 and developed rapidly for more than a decade until the legislature limited its scope. Since then, despite numerous actions invoking the doctrine, the court has not invalidated a single land use decision on violation of it. This part summarizes this ascent and decline of Washington's appearance of fairness doctrine.

A. Roots of the Doctrine

"The principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts."(fn12) So stated the court in the first Washington case where the judicial apparent fairness standard to a quasi-judicial administrative board was applied. The doctrine has roots in both common law and constitutional due process applied to administrative decision makers.(fn13) The early courts seemed to assume a constitutional basis for apparent fairness as a component of due process, probably because the doctrine derived from the Judicial Code.(fn14) The court ultimately disavowed a constitutional basis for the doctrine, which then permitted the legislature to curtail it.(fn15)

B. Doctrinal Development

The seminal decision came in 1969 in a case involving the rezoning of island property for heavy industrial use.(fn16) Smith v. Skagit County set the framework from which the doctrine developed.(fn17) The Smith rule had three components governing public actions: first, if a public hearing is required by law, it must be fair in appearance as well as in substance;(fn18) second, the standard applies to both legislative and quasi-judicial proceedings;(fn19) and third, the test for fairness is that the hearing "must not only be open-minded and fair, but must have the appearance of being so," based on the perspective of a fair-minded person in attendance at all of the meetings on a given issue.(fn20)

The Smith court's reluctance to separate the legislative and quasi-judicial functions of the county's governing body apparently led the court beyond traditional due process, which arguably could have sufficed for a quasi-judicial action.(fn21) The court wrestled with the distinction in subsequent cases. In Chrobuck v. Snohomish County, the court determined that an appointed planning commission had quasi-judicial functions in order to find appearance of fairness violations by a member of the commission.(fn22) In Fleming v. City of Tacoma, the court distinguished between a legislative body's actions in adopting a comprehensive plan or zoning code and in amending the code or rezoning a property: the former is legislative, the latter is quasi-judicial.(fn23) In Polygon Corp. v. City of Seattle, the court held that purely administrative actions, where no public hearing was required, were not subject to the doctrine.(fn24)

In the land use context, virtually all of the appearance of fairness violations have been by members of city councils, boards of county commissioners, and planning commissions.(fn25) Occasionally, the doctrine has been applied to quasi-judicial administrative actions outside the context of land use decisions. In one case for example, the court found a violation in an employment discrimination complaint to the state human rights commission, because of personal interest by a commission member.(fn26) In another administrative area, the court did not find a violation of the doctrine by members of the Washington Medical Disciplinary Board for combined investigatory and adjudicatory functions.(fn27)

The appearance of fairness doctrine parallels due process requirements by mandating (1) public meeting notice and opportunity to be heard, and (2) impartial decision makers. The first of these, deficiencies in public meeting procedures, is the less frequent class of violation. The actual appearance of fairness violation found in Smith was flaws in the public hearings, especially the exclusion of opponents from a closed meeting and insufficient opportunity for opposing testimony.(fn28) Normally, cross-examination is not a feature of land use hearings, but the Chrobuck court found the absence of cross-examination to be a violation of appearance of fairness.(fn29) In another case, the court suggested that sufficient meeting notice may also be a requirement of the doctrine.(fn30)

But most of the attention for the appearance of fairness doctrine is on the impartiality of the public officials making the decision. The Buell v. City of Bremerton court identified...