Why The Washington Administrative Procedure Act Should Be Amended

There is a scene in the movie “My Cousin Vinny,” in which novice criminal defense attorney Vinny Gambini brags to his fiancée that he got the district attorney in a murder prosecution to turn over his casefile. Mona is not an attorney, but she knows that it was not Vinny’s effectiveness as a defender that prompted the district attorney to share. Due Process requires prosecutors to turn over all exculpatory and impeachment evidence in the government’s possession. Brady v. Maryland and Giglio v. United States.There is no analogous rule requiring such broad disclosure in civil court. Instead, parties to a civil action have to follow the discovery rules under the Rules of Civil Procedure. The discovery rules allow the parties to ask written questions to one another, to depose one another, and to request the production of certain materials that may contain or lead to relevant evidence. A party’s ability to ask the right questions during discovery often has a major impact on their ultimate success in an action. On the other hand, subjects of discovery requests are often reluctant to provide the requested information. As a result, parties often end up in front of a judge who must decide whether a party should be compelled to provide information in response to a discovery request, or be protected from having to do so.The rules governing administrative adjudications (e.g., adjudicative proceedings concerning sanctions against a professional license by on one of the state licensing agencies) generally anticipate informal discovery in which simple a request (e.g., “Please produce all materials related to the Department’s allegation that John Doe committed unprofessional conduct.”) is sufficient to obtain necessary discovery. But, unlike in criminal prosecutions, the subjects of state agency action are often not represented by counsel. These unrepresented parties are not likely to know how to make a discovery request that would allow them to defend themselves.I often consult people who have received notice that they are the subjects of adverse state agency action, and have already requested a hearing—with the intention of representing themselves. Then, during the prehearing phase of their case, they realize they should be represented by an attorney at. By the time such a person comes to me, the time for obtaining discovery may have passed, which requires me to try and reset the case schedule so that there is time to review the evidence upon which the state has based its allegations, as well as conduct any independent investigation that may be necessary. Many administrative adjudications in Washington involve parties who are not represented by counsel, and who have likely not had an opportunity to review the State’s investigation. If the State has not disclosed material it possess, which would be helpful to a party’s defense, that party may be denied a fair hearing. And, unlike the prosecutor in “My Cousin Vinny” the Washington agency that does not turn this material over—without having been asked—will not have broken any rules. The Washington Administrative Procedure Act should be amended so that any request for an administrative adjudication is also treated as a request for everything in the State’s possession in relation to the contested action. And, it should create the administrative law equivalent to the requirements of Brady and Giglio for the State to provide all exculpatory and impeachment evidence with no requirement for a specific request.