Chicago, M., St. P. & P. R. Co. v. Washington State Human Rights Commission

• Decision Date: 09 December 1976
• Docket Number: No. 44105,44105
• Citation: 557 P.2d 307,87 Wn.2d 802
• Parties: , 14 Fair Empl.Prac.Cas. (BNA) 130, 13 Empl. Prac. Dec. P 11,498, 1 A.D. Cases 11 CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, Respondent-Cross-Appellant, v. WASHINGTON STATE HUMAN RIGHTS COMMISSION, Appellant-Cross-Respondent.
• Court: Washington Supreme Court

Page 802

87 Wn.2d 802

557 P.2d 307, 14 Fair Empl.Prac.Cas. (BNA) 130,

13 Empl. Prac. Dec. P 11,498, 1 A.D. Cases 11

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY Respondent-Cross-Appellant, v. WASHINGTON STATE HUMAN RIGHTS COMMISSION, Appellant-Cross-Respondent.

No. 44105.

Supreme Court of Washington, En Banc.

Dec. 9, 1976.

Rehearing Denied Jan. 13, 1977.

Slade Gorton, Atty. Gen., Winslow Whitman, Asst. Atty. Gen., Olympia, for appellant.

James E. Nelson, J. Fred Simpson, Dennis G. Opacki, David H. Boyd, Seattle, for respondent.

Harold H. Green, Seattle, for amicus curiae, National Federation of the Blind.

HUNTER, Associate Justice.

In June, 1973, Robert G. Clark applied for the job of railroad brakeman with the respondent, Chicago, Milwaukee, St. Paul, and Pacific Railroad Company (Railroad). The application process included a medical report covering Clark's physical history and the results of a physical examination. During his physical examination, Clark informed the examining physician of two previous knee surgeries, a medical meniscectomy in each knee, one performed in 1962 and the other in 1967. These two knee surgeries were included in the report, which was sent to the Railroad's chief surgeon. Based on this medical report, the Railroad's chief surgeon recommended that Clark's employment application not be approved. On July 26, 1973, Clark received a letter from the Railroad informing him that his application had been rejected.

Or or about September 18, 1973, Clark filed with the appellant, Washington State Human Rights Commission, a notarized complaint, charging the Railroad with discrimination based on a possible physical handicap. Upon investigation by a member of the Commission's staff, the Commission found that there was reasonable cause to believe that an unfair practice had occurred. Following the failure to resolve the dispute through conciliation, the Commission filed an amended complaint on May 14, 1974. The amended complaint contained an affidavit in which a Commission compliance supervisor stated his belief that the complaint had merit.

On May 22, 1974, the chairman of the Commission appointed a hearing tribunal. The Railroad challenged one member of the panel, Sue Ammeter, on two grounds, competency because of her blindness and bias because of her occupation at the time as an investigator for Seattle's Office of Women's Rights. The chairman of the Commission rejected the challenge on both grounds. The evidentiary hearing before the tribunal took place on July 8 and 9, 1974. The tribunal entered its findings, conclusions, and order on November 7, 1974, although they were not filed with the clerk of the Commission until December 9, 1974. In general, the tribunal agreed with the allegations in the amended complaint. It found that in refusing to hire Clark, the Railroad had discriminated against him on the basis of a physical handicap and had therefore committed an unfair practice within the meaning of RCW 49.60.180(1). The tribunal ordered various relief including an award for lost wages, and ordered the Railroad, among other things, to offer Clark employment as a brakeman.

The Railroad appealed the tribunal decision to the superior court for review. In addition to the record of the administrative proceedings, the superior court received evidence concerning the selection and composition of the hearing tribunal. Among other findings and conclusions in its judgment, the superior court reversed the findings of the tribunal and declared RCW 49.60 'void for lack of a definition of the term 'handicapped'.' It is from this judgment that the Commission appeals. In addition, the respondent Railroad cross-appeals on two issues, one related to the selection of the tribunal and the other related to the fairness of the proceedings. For the reasons discussed below, we reverse the trial court's conclusion that the statute is unconstitutionally vague and vacate the remainder of the superior court judgment.

The law against discrimination, RCW 49.60, defines and provides remedies for various 'unfair practices' related to discrimination. The statutory section at issue in the present case, RCW 49.60.180, provides:

It is an unfair practice for any employer:

(1) To refuse to hire any person because of such person's age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap . . .

The appellant Commission contends that RCW 49.60.180(1) is not unconstitutionally vague and indefinite even though the statute does not contain a definition of the word 'handicap.' We agree because the statute provides fair notice of what is required.

The test in Washington for vagueness is the 'common intelligence' test enunciated in State v. Reader's Digest Ass'n, 81 Wash.2d 259, 273, 501 P.2d 290 (1972). Sonitrol Northwest, Inc. v. Seattle, 84 Wash.2d 588, 594, 528 P.2d 474 (1974). The terms of a statute are sufficiently defined where men of common intelligence need not guess at their meaning. The vagueness test does not require a statute to meet impossible standards of specificity. Blondheim v. State, 84 Wash.2d 874, 878, 529 P.2d 1096 (1975). If, based on common practice and understanding and in the context of well-defined usage, a statute provides fair notice of what it requires, then it will not be subject to a procedural due process challenge on grounds of vagueness. See Blondheim v. State, supra; State v. Dixon, 78 Wash.2d 796, 805--6, 479 P.2d 931 (1971).

Men of common intelligence need not guess at the meaning of 'handicap' because it has a well defined usage measured by common practice and understanding. 'Handicap' commonly connotes a condition that prevents normal functioning in some way. A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental, or physical faculties. A 'handicap' is: '. . . a disadvantage that makes achievement unusually difficult; Esp: a physical disability that limits the capacity to work.' Webster's Third New International Dictionary (1961). See State v. Turner, 3 Ohio App.2d 5, 209 N.E.2d 475 (1965); Chicago, M., St. P. & P. R.R. v. Department of Indus., Labor & Human Relations, 62 Wis.2d 392, 215 N.W.2d 443 (1974). It is obvious that 'handicap' has a well understood, common meaning. Men of ordinary intelligence undoubtedly can understand what constitutes a 'handicap' within the context of RCW 49.60.180(1), and, consequently, the statute is not void for vagueness. Cf. Spokane v. Vaux, 83 Wash.2d 126, 129--30, 516 P.2d 209 (1973).

The next issues we consider are raised by the Railroad on cross-appeal. The Railroad first contends that the proceedings before the hearing lacked the 'appearance of fairness' due to a certain potential conflict of interest as to one of the tribunal members. Its second contention is that the method used by the Commission to select the hearing tribunal was defective. We agree with the Railroad on both points.

An impermissible conflict of interest existed in the present case because one of the tribunal members, Susan Ammeter, had a job application pending with the Commission during the time period the tribunal was processing and deciding this case. Ms. Ammeter took a Field Representative II examination on April 4, 1974. Her accompanying application for employment with the Commission was thus on file with the State Personnel Board several weeks before the Commission chairman appointed the hearing tribunal in this case on May 22, 1974. At the time the tribunal was appointed, the clerk of the Commission was aware of Ms. Ammeter's pending job application and her status as a nonhired applicant. On December 5, 1974, Ms. Ammeter was asked if she was still interested in a job with the Commission and was offered a job. The tribunal's conclusions had been signed by all tribunal members as of November 7, 1974, and they were finally filed with the clerk of the Commission on December 9, 1974. On January 2, 1975, Ms. Ammeter began working for the Commission as a complaint investigator. The Railroad was not aware of these facts until after the hearing when it took Ms. Ammeter's deposition.

The hearing tribunal in this case was appointed by the Commission to evaluate the evidence and determine whether the facts constituted impermissible discrimination in violation of RCW 49.60.180(1). The tribunal functioned not only as a trier of fact but also as the ultimate decision-maker, not unlike a judge in a nonjury trial. See RCW 49.60.250. It was required to set out its final decision in an order, accompanied by findings of fact, conclusions of law, and an opinion explaining its reasoning. WAC 162--08--301. There can be no doubt that the hearing tribunal, including Ms. Ammeter, was performing an adjudicatory, rather than a legislative or policy-making function when it found that the Railroad had violated RCW 49.60.180(1). See Francisco v. Board of Directors of the Bellevue Public Schools, Dist. 405, 85 Wash.2d 575, 579--82, 537 P.2d 789 (1975).

Since the hearing tribunal was, at the least, performing in a quasi-judicial capacity, there is no reason that the same common-law rules of disqualification applicable to judges should not apply. See Board of Education v. International Union of Operating Eng'rs, Local 68, 109 N.J.Super. 116, 119, 262 A.2d 426 (1970). The Illinois Supreme Court recognized this fundamental concept in In re Heirich, 10 Ill.2d 357, 384, 140 N.E.2d 825, 67 A.L.R.2d 827 (1956), when it stated that the classical principle, that no person having a conflict of interest may judge a case,

is as applicable to administrative agents, commissioners, referees, masters in chancery, or other arbiters of questions of law or fact not holding judicial office as it is to those who are technically judges in the full sense of the word.

The extension to such administrative tribunals of the disqualification rules applicable to judges is a well...