September 19, 2018

Do agency proceedings strip us of our constitutional rights?

By Brian T. Hodges Senior Attorney

The tendency for courts to broadly defer to agency decisions frustrates the judiciary’s core function as the adjudicative branch of government. Such deference also frustrates individual rights by sweeping constitutional guarantees under the rug.

Take, for example, Washington State’s Growth Management Hearing Board. The legislature created the agency in response to the State’s Growth Management Act and Shoreline Management Act, which require each city and county to adopt and periodically update their comprehensive land use and environmental regulations. As originally envisioned, the Board would review those plans for compliance with the Acts’ various regulatory requirements—nothing more. The idea was to lessen the burden on the courts by determining whether the regulations complied with the statutes before an individual can raise constitutional questions to a superior court. Thus, early state court decisions hold that the Growth Board lacks the authority to consider constitutional questions—indeed, it even lacks the authority to determine the existence of a property right. Those questions are preserved for the courts.

But in Preserve Responsible Shoreline Management v. City of Bainbridge Island, a trial court barred the plaintiffs from putting on any evidence relating to their constitutional claims. According to the court, the plaintiffs were required to submit their evidence to the Growth Board—even though the Board lacked jurisdiction to decide any questions of facts or law relating to the constitutional claims.

Last week, PLF filed the opening brief on appeal, asking whether a citizen has a right to put on evidence necessary to prove a constitutional claim before the first court with jurisdiction to hear such claims. The answer, we argue, is obviously yes. The right of each person to petition the courts for redress of harm is one of the most precious of the liberties safeguarded by the Bill of Rights. As a corollary to that right, each litigant has a constitutionally protected right to present evidence in support of his or her claims. Together, those basic rights guarantee that judges will be sufficiently informed to serve as arbiters and fact-finders. To hold that the Growth Board’s administrative review process limits this fundamental right does violence to the constitution.

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Preserve Responsible Shoreline Management (PRSM) v. City of Bainbridge Island; Olympic Stewardship Foundation (OSF) v. Growth Management Hearings Board

Coastal counties in Washington State passed “critical areas” ordinances requiring all shoreline property owners to dedicate a “buffer” zone and a strip of their beach property to the public as a mandatory condition on any new development. The counties assert this purported power under the state’s Shoreline Management Act, in which Washington’s legislature explicitly rendered property rights “secondary” to the public’s interest in the environment. Citizens groups in Bainbridge Island and Jefferson County challenged these conditions as unconstitutional takings because the need for buffers were not supported by the scientific record and took more than necessary to mitigate any negative impacts cause by development of the property. PLF represents the Bainbridge Island property owners (PRSM) in the challenge, which was stayed pending resolution of the Jefferson County case (OSF), in which PLF participated as amicus.

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