Opinion
No. 59562-8-I.
June 9, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-09525-3, John P. Erlick, J., entered January 29, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Grosse and Leach, JJ.
RCW 18.130.080 requires a disciplinary agency board to determine whether complaints merit investigation of a licensed professional prior to undertaking an investigation. The Dental Quality Assurance Commission (DQAC) failed to make such a determination prior to staff initiated investigations of complaints against Dr. Jeffrey Burgess, a dentist. We hold the error was harmless. Dr. Burgess also argues the sanctions imposed by the panel were excessive, that under the doctrine of appearance of fairness he was denied an impartial hearing, and the prosecutor interfered with a witness's testimony. We affirm.
Facts
Dr. Jeffrey Burgess is a dentist, licensed to practice in both Hawaii and Washington. Washington State Dental Quality Assurance Commission (DQAC) received complaints from three female patients, stating that Dr. Burgess touched them in a sexual manner. Once DQAC staff received the complaints against Dr. Burgess, a case management team met and determined the complaints involved possible sexual misconduct by a licensed professional. An internal policy adopted by the DQAC in 1996 directed staff to automatically investigate all complaints involving possible sexual contact between a dentist and patient. Because the complaints involved potential sexual misconduct, the DQAC staff investigated. Based on the complaints, on February 5, 2003, DQAC issued a statement of charges against Dr. Burgess explaining that sexual contact with patients constituted professional misconduct and grounds for the imposition of sanctions under RCW 18.130.160. Subsequently, the DQAC issued an ex parte motion for order of summary action, limiting Dr. Burgess's practice to male patients. Upon receiving complaints from seven additional female patients, the DQAC amended the statement of charges to include allegations of misconduct from ten female patients.
During November and December of 2004, the DQAC held a six-day hearing on the charges brought against Dr. Burgess. All ten female patients testified about Dr. Burgess touching them in a sexual manner. Patient A for example, testified that during treatment for pain caused by the temporomandibular joint (TMJ), Dr. Burgess asked her to unbutton her shirt, sprayed ethynol chloride over her entire breast, and proceeded to massage her breast. Similarly, Patient C testified that Dr. Burgess also massaged and cupped her breasts in the course of performing treatment. At the hearing Dr. Burgess argued he conducted a technique called "spray and stretch" on all ten patients in order to relieve pain and tension. Several expert witnesses recognized the usefulness of the technique, but each testified it did not require massaging a patient below the collarbone. Based on the testimony presented at the hearing, the DQAC found Dr. Burgess engaged in unprofessional conduct by touching nine female patients in a non-therapeutic manner. DQAC sanctioned Dr. Burgess by revoking his license for five years, imposing a $25,000 fine, requiring a psychological evaluation, requiring an anger management assessment and counseling for one year, and mandating he successfully take a jurisprudence exam.
Dr. Burgess filed for judicial review to the King County Superior Court. After hearing oral argument, the trial court entered an order remanding several issues for supplementation by the DQAC. The trial court specifically directed the DQAC to address whether it complied with RCW 18.130.080, whether there was a factual basis to impose anger management sanctions, and whether the inclusion of a particular finding of fact supported the conclusions. Pursuant to the order, DQAC held an evidentiary hearing. It then issued amended findings of fact, conclusions of law, and a final order.
After reviewing the administrative record that was supplemented on remand, the trial court entered an order, holding: the DQAC did not violate due process requirements of RCW 18.130.080 as outlined in Client A. v. Yoshinaka, Dr. Burgess waived any objection to the investigatory process, the order was supported by substantial findings of fact, and the DQAC presiding panel member did not erroneously deny Burgess's motion to disqualify panel members for exposure to ex parte information.
Dr. Burgess appealed in February of 2007. He appeals the trial court's order that affirmed DQAC's amended findings of fact, conclusions of law, and final order.
Analysis
A. Standard of Review
The intent of the Uniform Disciplinary Act (UDA), chapter 18.130 RCW, is to "assure the public of the adequacy of professional competence and conduct in the healing arts." RCW 18.130.010. The Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW, governs judicial review of disciplinary proceedings under the UDA. RCW 18.130.100. Under RCW 35.05.570(3), the court will reverse only if it determines the administrative decision (1) is based on an error of law; (2) is unsupported by substantial evidence; (3) is arbitrary or capricious; (4) violates the constitution; (5) is beyond statutory authority; or (6) when the agency employs improper procedures. RCW 34.05.570(3); Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). As the party challenging the Commission's decision, Dr. Burgess bears the burden of establishing the decision is invalid under one or more of the criteria under the WAPA. RCW 34.05.570 (1). On review, this court "sits in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency." Tapper, 122 Wn.2d at 402.
B. Violation of RCW 18.130.080
Dr. Burgess contends the DQAC violated RCW 18.130.080 and his due process rights when department staff investigated complaints against him without the disciplinary board first determining the complaints had merit. Based on this violation he seeks vacation of the order and a new proceeding. In its amended findings of fact, conclusion of law, and final order, DQAC found no violation of the statute.
An appellate court reviews an agency's conclusions of law de novo. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d 1062 (1991). The court however accords substantial weight to an agency's interpretation of the law it administers when it is within the agency's expertise. Id. at 728.
RCW 18.130.080 requires:
If the disciplining authority determines that the complaint merits investigation or if the disciplining authority has reason to believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the disciplining authority shall investigate to determine whether there has been unprofessional conduct.
In Client A. v. Yoshinaka, this court concluded that under RCW 18.130.080 an investigation against a licensed professional may not proceed until the board of the disciplinary authority reviews the complaint and determines there are reasonable grounds to believe unprofessional conduct has occurred. 128 Wn. App. 833, 843, 116 P.3d 1081 (2005).
In Yoshinaka, Washington's Department of Health received a complaint regarding a psychiatrist from the mother of an adult patient who was involved in couples counseling. Id. at 836-37. Upon receiving the complaint, staff began an investigation. There was no finding by the disciplinary agency that the complaints merited investigation. Staff at the Department of Health notified the psychiatrist of the complaint and asked him to provide the individual and group treatment records. Id. at 837. The psychiatrist, at the direction of the patient refused to disclose the records. Id. Despite patient objection to disclosure, department staff advised the psychiatrist that failure to comply with the request for patient records would result in charges of unprofessional conduct. Id. at 838. Concerned about the privacy interests of the patients, this court unequivocally found RCW 18.130.080 requires that the disciplinary board determine whether the complaint merits an investigation. Id. at 843-44.
As a preliminary matter, DQAC argues Dr. Burgess waived any objection to the investigatory process by not raising the issue until his appeal to the superior court. Yoshinaka however was not filed by this court until August of 2005, several months after the DQAC issued its order. As this court noted in Lunsford v. Saberhagen Holdings Inc., where an appellate court applies a new rule to the litigants before them, it applies to all other pending claims. 139 Wn. App. 334, 343-44, 160 P.3d 1089 (2007). The ruling in Yoshinaka may be retroactively applied because Dr. Burgess' case was still pending. In November of 2004, Yoshinaka had not been filed, and Dr. Burgess could not have therefore waived any rights announced in that case.
DQAC argues it did not violate RCW 18.130.080 because it required staff to investigate all complaints of sexual contact. In 1996, DQAC enacted an internal policy that required department staff to investigate all claims of sexual misconduct. Pursuant to this policy, in November of 2001, when Patient A complained about Dr. Burgess touching her sexually, DQAC staff initiated an investigation. For each of the next nine complaints against Dr. Burgess, DQAC staff automatically launched an investigation. During the investigatory process, Dr. Robin Reinke, a member of the disciplinary board, was aware of the complaints against Dr. Burgess and the investigations. She never made an independent finding that an investigation was merited.
Here, DQAC argues its 1996 policy meets the requirements of RCW 18.130.080. A similar argument was already squarely rejected in Yoshinaka, which held formal rulemaking is required in order for the department to delegate or grant staff permission to initiate investigations without board authorization. Yoshinaka, 128 Wn. App. at 844. In Yoshinaka, the disciplinary board orally ordered staff to investigate certain types of complaints. Here, in a 1996 policy, DQAC ordered the staff to investigate complaints of misconduct. There was no formal rulemaking, only an internal policy. Under the rule announced in Yoshinaka, such mandates fail the statutory requirement that the board itself determine whether an individual complaint has merit. Under strict requirements outlined in Yoshinaka, DQAC failed to comply with the plain language of RCW 18.130.080.
Dr. Burgess contends a violation of RCW 18.130.080 requires this court to reverse and vacate the agency's final order. Based on State v. Miles, he argues an agency's violation of the procedures required in RCW 18.130.080 is akin to a warrantless search. 160 Wn.2d 236, 156 P.3d 864 (2007). Miles involved a criminal prosecution of an individual for securities fraud. The Department of Financial Institutions failed to obtain a proper subpoena to access Miles' bank records. The Washington Supreme Court held a warrantless search by an administrative agency violates an individual's constitutionally protected privacy interests. It required suppression of unlawfully obtained evidence. Id. at 251-52. Miles does not support Dr. Burgess's argument that this court must vacate DQAC's order and dismiss. Rather, Miles suggests the proper remedy is suppression for unlawfully obtained evidence. Here, no evidence was unlawfully obtained.
Dr. Burgess fails to establish that the procedural deficiencies of the investigation resulted in improper disclosure of records or in violation of discovery rules that contaminated the proceeding. Dr. Burgess makes no showing that he has a protected privacy interest in the patient records. Unlike Yoshinaka, he was not asserting a legal duty to protect records of patients who objected to production of their records. Here the patients filed the action putting the treatment documented by those records at issue and later expressly authorized the release and use of the records. Here, the DQAC's violation of RCW 18.130.080 only affected the date of the commencement of the investigation, not the unlawful acquisition of any evidence. We find the statutory violation harmless on these facts.
C. Sanctions
A court can reverse an agency order if it is arbitrary or capricious. RCW 34.05.570(3)(i); Heinmiller v. Dep't of Health, 127 Wn.2d 595, 609, 903 P.2d 433 (1995). An action is arbitrary and capricious if it is made without consideration and in disregard of the facts and circumstances. Johnson v. Dep't of Health, 133 Wn. App. 403, 414, 136 P.3d 760 (2006). "Where there is room for two opinions, that standard is not met." Id. (citing Heinmiller, 127 Wn.2d at 609-10). For the court to reverse a discretionary agency decision, it must find the agency's discretion was exercised on untenable grounds or for untenable reasons and is manifestly unreasonable. ITT Rayonier, Inc. v. Dalman, 67 Wn. App. 504, 510, 837 P.2d 647 (1992). A reviewing court should accord deference to an agency's determination of sanctions, because it is a matter of administrative competence. In the Matter of the Disciplinary Proceeding of Brown 94 Wn. App. 7, 16, 972 P.2d 101 (1998).
After finding a license holder has engaged in unprofessional conduct, RCW 18.130.160 grants the disciplinary authority the right to impose sanctions including: revocation of license, suspension of license for a fixed or indefinite period of time, compliance with conditions of probation for a designated period of time, requiring the satisfactory completion of a specific program of remedial education or treatment, and payment of fine (each violation of chapter 18.130 RCW not to exceed $5,000). When imposing sanctions, the statute requires the disciplinary authority, here the DQAC, to consider the necessary sanctions to protect or compensate the public. RCW 18.130.160; Lang v. Dental Quality Assurance Comm'n, 138 Wn. App. 235, 255, 156 P.3d 919 (2007) rev. denied 162 Wn.2d 1021 (2008). Only after taking steps to protect the public, a disciplinary authority may order sanctions to rehabilitate the professional. RCW 18.130.160.
Dr. Burgess asserts the panel violated his right to due process when it imposed sanctions that exceeded those in the proposed stipulated findings of fact, conclusions of law, and agreed order. The document Dr. Burgess refers to is not part of the administrative record and therefore not properly before this court. RCW 34.05.558; Macey v. Dep't of Employment Sec., 110 Wn.2d 308, 311, 752 P.2d 372 (1988). Regardless, Dr. Burgess' argument lacks merit. He characterizes the document as a statement of potential sanctions. It is entitled "Stipulated Findings of Fact, Conclusions of Law, and Agreed Order." It states that if Dr. Burgess stipulates to all charges and signs the agreement, the DQAC, in exchange, would place him on probation. According to DQAC, it is an offer to settle. It did not limit the DQAC's authority to impose other sanctions. Dr. Burgess was notified in the statement of charges of DQAC's authority to impose sanctions. This sufficiently notified Dr. Burgess of the potential penalties he faced if the panel found he engaged in unprofessional conduct.
Next, Dr. Burgess contends DQAC imposed excessive sanctions compared to other similar cases. He asserts due process requires proportional sentencing for the same offense.
Based on Washington State Supreme Court cases involving disciplinary proceedings of lawyers, Dr. Burgess contends fundamental fairness requires objective and proportional standards for imposing sanctions. He concedes that the statute does not require proportional sanctions. Dr. Burgess's reliance on the attorney disciplinary cases is misplaced. The Washington Supreme Court has plenary authority to determine the nature of lawyer discipline, including appropriate sanctions. In the Matter of Disciplinary Proceeding Against Day, 162 Wn.2d 527, 538, 173 P.3d 915 (2007). The Washington Supreme Court is ultimately responsible to determining the nature of the disciplinary actions. Id. (citing In the Matter of Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983)). As this court noted in Brown, appellate review of agency imposed sanction is limited to determining whether it was arbitrary and capricious. 94 Wn. App. at 17. In Brown, this court held that in the context of medical licensing hearings, "[w]e must be guided by the Administrative Procedure Act — not lawyer discipline cases guided by the Code of Professional Conduct, Rules for Lawyer Discipline, and the Supreme Court which looks to a proportionality standard when imposing sanctions." Id. at 17. Under the WAPA, the appellate court only reviews the agency order for whether the sanction was arbitrary and capricious. The "harshness" of an agency's discipline or sanction is not the test for arbitrary and capricious action. Heinmiller, 127 Wn.2d at 609. Even if the Washington Supreme Court has decided proportional sanctioning may serve a purpose in the context of attorney discipline cases, there is no such statutory requirement here nor is there an infringement of a due process right.
Dr. Burgess provides a list of other disciplinary cases and argues his sanctions in comparison are disproportionately harsh. These cases are not part of the administrative record and thus not properly before the court. Macey, 110 Wn.2d at 311.
Last, Dr. Burgess argues DQAC improperly supplemented the record regarding the anger management sanctions. The trial court remanded several issues for supplementation by DQAC. The court stated, "[t]he administrative record does not contain the facts necessary for this Court to determine the Department's compliance with RCW 18.130.080 in its investigation of Dr. Burgess or the factual basis for imposing the anger management sanction."
Prior to making a final determination on the petition to review an agency action, RCW 34.05.562(2) allows a trial court to remand a matter to the agency with directions that the agency conduct fact-finding and other proceedings the court considers necessary if:
(a) The agency was required by this chapter or any other provision of law to base its action exclusively on a record of a type reasonably suitable for judicial review, but the agency failed to prepare or preserve an adequate record.
RCW 34.05.562(2)(a). Here, the superior court's review of the DQAC order was limited to the judicial record. Consistent with RCW 34.05.562, the trial court ordered supplementation in order to determine issues on review. The trial court statutorily authorized the DQAC to supplement the record. DQAC's actions in compliance with that order were not improper.
Dr. Burgess contends the DQAC lacked sufficient findings to justify the imposition of anger management sanctions. We do not agree. Patient G testified that Dr. Burgess became aggressive when she refused pain medication, spoke forcefully to her when she refused massages from him, and she feared she had made him angry. The finding adequately supports the sanction of anger management; it was not an arbitrary or capricious action by the DQAC.
Dr. Burgess also argues that members of the DQAC panel are dentists, not psychologists, and therefore unable to make determinations about non-dental conduct. RCW 18.130.160, grants disciplinary bodies wide latitude in ordering sanctions and in rehabilitating a license holder. Nghiem v. State, 73 Wn. App. 405, 414, 869 P.2d 1086 (1994). The DQAC's imposition of anger management sanctions and the requirement Dr. Burgess undergo a jurisprudence exam were not arbitrary and capricious.
D. Appearance of Fairness
Burgess asserts he was denied his due process right to a fair hearing because members of the disciplinary authority received ex parte information. He also alleges panel members showed bias in their questioning of witnesses.
"The appearance of fairness doctrine extends the due process requirement that judicial officers be free of any taint of bias to administrators acting in a quasi-judicial capacity." City of Lake Forest Park v. Shorelines Hearings Bd., 76 Wn. App. 212, 217-18, 884 P.2d 614 (1994). "It provides protection against decisionmakers who are actually biased or have a pecuniary interest in the proceedings." Id. "Under the appearance of fairness doctrine, proceedings before a quasi-judicial tribunal are valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing." Medical Disciplinary Board v. Johnston, 99 Wn.2d 466, 478, 663 P.2d 457 (1983). Administrative decisionmakers are presumed to perform their quasi judicial functions properly. Lake Forest Park, 76 Wn. App. at 217. A party claiming an appearance of fairness violation is required to present specific evidence of a violation, not speculation. Sherman v. Moloney, 106 Wn.2d 873, 883-84, 725 P.2d 966 (1986).
First, Dr. Burgess claims he was denied the right to a hearing before an impartial tribunal because two panel members were exposed to complaints regarding an unidentified dentist. A month passed between the first five days of Dr. Burgess's disciplinary hearing and the last. In the intervening month, some commissioners, including two members adjudicating Burgess's disciplinary proceeding, Dr. Timms and Mr. Nelson, attended a regularly scheduled meeting. One of the tasks at this December 2004 meeting included reviewing new complaints. The Commissioners received a packet of complaints regarding multiple unidentified dentists. All information about the dentist, his or her license number, and all identifying information was redacted. Staff had inadvertently placed two of the complaints in the packet. Both of these inadvertently included complaints had the following description:
The complainant states receiving massage treatment form [sic] the respondent which she was not sure was appropriate. The respondent massaged from her jaw to her breast.
These two complaints included hand written staff notes stating the complaint was "admitted under seal" and "CNA (hold pattern until judgment)." The last notation indicated the complaint sheet was to be held and excluded from the review packet until an on-going disciplinary hearing was concluded. At the December meeting, when the commissioners received the packet of complaints to review, Dr. Burgess's name was never mentioned.
On the final day of the Dr. Burgess's disciplinary hearing, Mr. Nelson, who attended the regular commissioners meeting in December, asked the presiding officer if he could question Dr. Burgess about the unidentified complaints. The presiding officer informed Nelson that he was prohibited from doing so. Both panel members stated the ex parte information did not impair their ability to decide the case fairly. Dr. Burgess moved to have Mr. Nelson and Dr. Timms disqualified. The presiding panel member denied the request.
To succeed on a claim of an agency's violation of the appearance of fairness doctrine, Dr. Burgess must show an actual violation, not mere speculation. Sherman, 106 Wn.2d at 883-84. Dr. Burgess acknowledges that a disciplinary board's multiple functions that include both a combination of investigatory and adjudicative roles do not necessarily violate the appearance of fairness. Johnston, 99 Wn.2d at 478. Based on Sherman v. State however, Dr. Burgess contends a judge's ex parte communication about evidence requires recusal. 128 Wn.2d 164, 203-05, 905 P.2d 355 (1995). In Sherman the trial judge ordered his extern to make inquiries about the chemical dependency monitoring process of a suspended medical professional. Id. The appellate court found the trial judge acted improperly by ordering personnel to obtain ex parte information. Further, given the trial judge's improper actions, recusal was the appropriate remedy, even if the information obtained was not specific to the parties involved. Id. at 206-07. Sherman does not require recusal of the DQAC board members. Whether recusal was the appropriate remedy in Sherman was directly connected to the trial judge's improper actions. It does not stand for the broad proposition that members of an adjudicatory board are automatically disqualified if they receive ex parte communications.
Dr. Burgess argues disqualification was the appropriate remedy because the panel's impartiality was tainted by exposure to the complaints. Dr. Burgess contends the presiding member erred in not disqualifying the members. He argues her decision not to disqualify was wrongly based on the panel members' own subjective perceptions of their impartiality. In the administrative law context, three types of bias generally call for disqualification:
These are [1] prejudgment concerning issues of fact about parties in a particular case; [2] partiality evidencing a personal bias or personal prejudice signifying an attitude for or against a party as distinguished from issues of law or policy; and, [3] . . . an interest whereby one stands to gain or lose by a decision either way.
Ritter v. Bd. of Comm'rs, 96 Wn.2d 503, 512, 637 P.2d 940 (1981); (citing Buell v. Bremerton, 80 Wn.2d 518, 524, 495 P.2d 1358 (1972)). To establish a panel member should be disqualified requires the one alleging bias to make an affirmative showing to that effect. Ritter, 96 Wn.2d at 513-14. Here, Dr. Burgess incorrectly places the burden on DQAC to objectively establish impartiality. Instead, however, Dr. Burgess must establish that exposure to the complaints prejudiced the hearing in some material way. He fails to do so. The complaints did not identify Burgess. There was no discussion at the December 10 meeting about the complaints. Both panel members stated, on the record, that the information did not impair their ability to be impartial and fair to Dr. Burgess. There is no evidence of bias.
We hold the Dr. Burgess was not denied a fair and impartial hearing when two DQAC panel members received ex parte information that did not specifically identify him.
Next, Dr. Burgess contends the panel members violated his right to a fair trial when they commented on the credibility of witnesses during hearings conducted on remand. A review of the testimony and questions reveals no improper conduct that violates the appearance of fairness doctrine.
Dr. Burgess relies on criminal cases to support his claim that a comment is improper. However, the case he cites, State v. Deal, directly relates to a jury trial. 128 Wn.2d 693, 911 P.2d 996 (1996). "An impermissible comment is one which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question." State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990).
E. Burden of Proof
Dr. Burgess argues DQAC applied the improper burden of proof. The appellate court reviews issues of law de novo. Haley, 117 Wn.2d at 728. Due to legal uncertainty regarding the proper burden of proof in a dentist's disciplinary proceeding, DQAC evaluated the evidence under both a preponderance of the evidence and clear and convincing standard. Dr. Burgess however, doubts the panel actually evaluated the evidence under both standards.
DQAC's final order includes a section describing the standard of proof being applied. In Nguyen v. Dep't of Health, the Washington Supreme Court held that a disciplinary proceeding involving a medical doctor required clear and convincing proof. 144 Wn.2d 516, 518, 29 P.3d 689 (2001). In 2005 however, this division of the Washington Court of Appeals held that in a disciplinary proceeding regarding a nurses' registration, the Department of health only has to prove misconduct by a preponderance of the evidence. Ongom v. Dep't of Health, 124 Wn. App. 935, 104 P.3d 29 (2005) reversed by Ongom v. Dep't of Health, 159 Wn.2d 132, 148 P.3d 1029 (2006). When DQAC heard and decided Burgess' case, there was legal uncertainty regarding what standard applied in dental proceeding. The Washington State Supreme Court clarified the proper standard in 2006. Ongom v. Dep't of Health, 159 Wn.2d 132, 148 P.3d 1029 (2006) cert. denied 127 S. Ct. 2115, 167 L. Ed 2d 815 (2007).
In a medical disciplinary proceeding, due process requires proof by clear, cogent, and convincing evidence. Ongom v. Dep't of Health, 159 Wn.2d 132, 142-43, 148 P.3d 1029 (2006). A commission's consideration of more than one standard is not error, so long as it finds the violations were supported by clear and convincing evidence. Lang, 138 Wn. App. 235, 247-48. We hold it was proper for the panel to consider both standards. The record indicates the panel actually considered both standards, even concluding that some charges did not meet both standards.
Dr. Burgess argues the DQAC's findings were not supported by substantial evidence. The ten complaining patients and a number of expert witnesses testified. The female patients spoke of Dr. Burgess touching their breasts under the auspices of treatment. No expert testified that touching a patient's breasts was therapeutically necessary. We hold the findings are supported by clear and convincing evidence.
F. Testimony of Dr. Truelove
Dr. Burgess claims his due process rights were violated when the University of Washington restricted the testimony of Edward Truelove, an employee. He argues that given the connection between the University of Washington and the Attorney General's Office, the restriction of Truelove's testimony amounts to prosecutorial interference.
A fundamental element of due process of law includes the defendant's right to present his own witnesses to establish a defense. Webb v. Texas, 409 U.S. 95, 98, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). A defendant is denied due process where a defense witness is threatened by the prosecutor or judge and those threats effectively keep that witness off the stand. Id.; State v. Carlisle, 73 Wn. App. 678, 679-80, 871 P.2d 174 (1994) (due process rights violated when judge makes threatening remarks to defense witness and witness refuses to take the stand).
Here, in his prehearing statement, Dr. Burgess identified Dr. Truelove as an expert witness. Dr. Truelove however had to be subpoenaed to testify. Dr. Truelove testified that the University of Washington restricted his testimony because it sought to distance itself from the particular issues in this case. He therefore felt he could not express an expert opinion in the case. The record indicates he testified at length about the spray and stretch procedure.
Dr. Burgess fails to establish prosecutorial interference. There is no evidence the prosecutor had any connection or influence over the University of Washington's restrictions on Dr. Truelove's testimony. Dr. Burgess extrapolates a connection because both are state agencies. This is insufficient to show prosecutorial interference. We hold Dr. Burgess's due process rights to present a defense witnesses were not violated because there is no evidence of prosecutorial interference.
G. Attorney fees
Dr. Burgess argues he is entitled to attorney fees under RCW 4.84.350(1), which entitles a party who prevails in a judicial review of an agency action to an award of reasonable attorney fees and costs. RCW 4.84.350(1).
Dr. Burgess is not the prevailing party and therefore is not entitled to attorney fees.
We affirm.