Washington law on collateral estoppel requires a showing of four basic elements: 1) Was the issue decided in the prior adjudication identical with the one presented in the action in question?
2) Was there a final judgment on the merits? 3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? and 4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?1
The doctrine applies as equally to administrative agency determinations as to court proceedings, with a significant exception in the case of criminal matters. Reninger v. Department of Correc-tions,2 best summarizes Washington law in this respect.
In Reninger, two correctional officers sued for wrongful termination and other torts. The officers had unsuccessfully appealed their initial demotions to the State Personnel Appeals Board. A jury returned a verdict in favor of the officers.
The Court of Appeals reversed and the Supreme Court affirmed on grounds that the Board's decision that the officers had committed gross misconduct collaterally estopped their tortious interference claim. The court held, "Decisions of administrative tribunals may have preclusive effect under Washington law," and employed a three-part test 'for deciding whether to apply collateral estoppel to the findings of an administrative body: "(1) whether the agency acting within its competence made a factual decision; (2) agency and court procedural differences; and (3) policy considerations.'"3
The court rejected arguments that the Board's "failure to adhere to the rules of evidence vitiates the Board's proceedings and justifies relitigation of the same factual issues in a trial court," noting that the officers "were afforded and took advantage of numerous procedures that obtain in superior court trials" and "displayed no lack of incentive to litigate in the administrative arena."4
"Actually Litigated" Versus A "Full and Fair Opportunity"
The court in Reninger did not include the federal courts' "actually litigated" factor in its three-part test nor does Washington's basic four-part test for collateral estoppel. The fourth collateral estoppel element, the "injustice factor," is "most firmly rooted in procedural unfairness." In this respect, "Washington courts look to whether the parties to the earlier proceeding received a full and fair hearing on the issue in question."5
In this respect, Washington v. Vasquez6 presented a question of first impression on whether determinations made in an administrative license suspension hearing should bar relitigation of those determinations in a subsequent criminal proceeding. Vasquez had succeeded at his revocation hearing in getting evidence of his blood alcohol content suppressed. At his subsequent trial on DUI and possession charges, Vasquez again sought to have the evidence suppressed, asserting collateral estoppel. The trial court denied Vasquez's motion to dismiss the charges and the Court of Appeals and Supreme Court affirmed.
The Supreme Court found that while Vasquez had satisfied the first three collateral estoppel elements, he did not meet the fourth. While the court cited the above statement from Thompson, the court distinguished the finding of collateral estoppel in that case where the administrative proceeding followed the criminal prosecution. Nevertheless, the court also drew on a reference in Thompson to the "unfairness of permitting an adjudication in an informal administrative setting É to bar later criminal prosecutions," finding that "we may qualify or reject collateral estoppel when its application would contravene public policy."7
Relying on a series of cases in which "we have refused to apply collateral estoppel to criminal prosecutions following decisions in other types of administrative hearings," the Vasquez court held that the bare formality of the revocation hearing could not preclude relitigation of issues reached there on grounds of "public policy and the interest of justice."8
[I]f an administrative hearing takes on characteristics of a completely litigated trial, it would defeat the legislative purpose of conducting swift and expeditious administrative hearings. Finally, forcing the State to fully litigate matters at the administrative level would cause delays and deplete already scarce resources within the prosecutor's office.9
The DLI Rule
Under Marley v. Department of Labor & Industries10 and Kingery v. Department of Labor & Industries11 the courts have followed a decades-long trend recognizing that unappealed administrative orders issued by the Department of Labor and Industries (DLI) represent "final adjudication" even where procedural formalities are not followed.12 This is contrary to federal law, which holds that mere administrative action is not adjudication. But the DLI procedure has been found to comport with the due process principles of Mathews v. Eldridge13 and, thus, to be constitutional.14
Therefore, a court likely would rule that a party receives his due process when the DLI order is issued and, as in Marley, the party is informed: "Any protest or request for reconsideration of this order must be made in writing to the Department of Labor and Industries in Olympia within 60 days,"15 but then waives his right to a hearing. Thus, the opportunity to be heard is provided and where the party elects not to pursue the opportunity, the order becomes final and preclusive.
While the federal courts require more than basic due process, i.e., notice and an opportunity to be heard, before an agency determination is given preclusive effect, this obviously is not the standard in Washington so long as the "opportunity" for more process is available, at least when the matter at hand is a DLI case.
Gene Barton is the editor of the Bar Bulletin. He is a shareholder at Karr Tuttle Campbell in Seattle with an emphasis in general and commercial litigation. He can be reached at 206-224-8030 or gbarton@karrtuttle.com. He wishes to thank summer associate Johanna Ogdon for her contributions to this article.
1 Lucas v. Velikanje, 2 Wn. App. 888, 894, 471 P.2d 103 (1970).
2 134 Wn.2d 437, 951 P.2d 782 (1998).
3 Id. at 449Ð50 (citing Luisi Truck Lines, Inc. v. Washington Utils. & Transp. Comm'n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967)). See also Stevedoring Servs. v. Eggert, 129 Wn.2d 17, 40, 914 P.2d 737 (1996).
4 134 Wn.2d at 450, 451, 454. See also Shoemaker v. Bremerton, 109 Wn.2d 504, 745 P.2d 858 (1987) (cited in Reninger) (according collateral estoppel effect to a finding by the Bremerton Civil Service Commission that a police officer's demotion was not retaliatory).
5 Thompson v. Department of Licensing, 138 Wn.2d 783, 795Ð96, 982 P.2d 601 (1999).
6 148 Wn.2d 303, 59 P.3d 648 (2002).
7 Id. at 309.
8 Id. at 310Ð11, 317Ð18. See also State v. Dupard, 93 Wn.2d 268, 609 P.2d 961 (1980) (holding that the State is not collaterally estopped in a criminal case from relitigating an issue previously decided in favor of the defendant at a parole revocation hearing); State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997) (holding that decision in an administrative action to recoup public assistance overpayments did not preclude prosecution of welfare fraud claim).
9 148 Wn.2d at 317Ð18. In Christensen v. Grant Cty. Hosp. Dist. No. 1, 152 Wn.2d 299, 96 P.3d 957 (2004), the court found that Vasquez did not overrule Reninger sub silentio, taking note of both the type of administrative proceeding involved and the consequences of the proceeding.
10 125 Wn.2d 533, 537 n.2, 886 P.2d 189 (1994) ("A party's failure to appeal an adverse ruling to the next level transforms the ruling into a final adjudication by the Department.").
11 132 Wn.2d 162, 169, 937 P.2d 565 (1997) ("An unappealed Department order is res judicata as to the issues encompassed within the terms of the order . . . .").
12 See also Shoopman v. Calvo, 63 Wn.2d 627, 630, 388 P.2d 559 (1964) ("A workman has his choice either to accept the department's determination, or he may appeal from it, but if he chooses not to appeal, he is concluded by the decision."); Prince v. Saginaw Logging Co., 197 Wash. 4, 13, 84 P.2d 397 (1938) ("Having acquiesced in the departmental decision by failure to appeal, the respondent can not be heard to question the correctness of this decision in another tribunal.").
13 424 U.S. 319 (1976).
14 See Buffelen Woodworking Corp. v. Cook, 28 Wn. App. 501, 625 P.2d 703, rev. denied, 95 Wn.2d 1020 (1981).
15 125 Wn.2d at 536.
