State v. Dupard

• Decision Date: 10 April 1980
• Docket Number: No. 46102,46102
• Citation: 609 P.2d 961,93 Wn.2d 268
• Parties: The STATE of Washington, Respondent, v. Ronald John DUPARD.
• Court: Washington Supreme Court

Page 268

93 Wn.2d 268

609 P.2d 961

The STATE of Washington, Respondent, v. Ronald John DUPARD.

No. 46102.

Supreme Court of Washington, En Banc.

April 10, 1980.

Michael A. Frost, Seattle, for petitioner.

Norman K. Maleng, Pros. Atty., James A. Trujillo, Deputy Pros. Atty., Seattle, for respondent.

HICKS, Justice.

This case presents an issue of first impression in this state. It may be sui generis. Petitioner Dupard asserts that the State is collaterally estopped in a criminal prosecution from litigating matters previously determined in his favor at a parole revocation hearing. Both the trial court and the Court of Appeals disagreed. We affirm.

While a parolee on a 1972 Washington narcotics conviction, Dupard was arrested in King County for possession of cocaine and heroin in two separate incidents occurring October 11 and November 15, 1976. November 16, 1976, an order of parole suspension was entered against him alleging parole violations arising out of both incidents. See RCW 9.95.120.

December 15, 1976, 1 day prior to Dupard's arraignment in King County Superior Court on criminal charges, the parole board held a parole revocation hearing. The board member conducting the hearing found for purposes of revocation that Dupard was "not guilty" of the alleged parole violation arising out of the October 11th incident. The board member stated:

I didn't feel that there was good enough evidence, chain evidence, and I think there's some question about that. Evidently the car wasn't registered to the parolee so I'm finding him not guilty, certainly I have some reservations, but I am going to find him not guilty of violation number 3 (the October 11, 1976 incident).

Dupard was found "guilty" of a parole violation based upon possession of narcotics underlying the November 15th arrest. Nevertheless, parole was reinstated because his maximum term expired in less than 1 month and because of the criminal proceedings pending in King County.

On the day of the parole hearing, an information was filed in King County Superior Court charging Dupard with three counts of narcotics possession. Counts 1 and 2, charging possession of cocaine and heroin with intent to manufacture or deliver, arose out of the October 11, 1976 incident. Count 3 incorporated the November 15th incident. Dupard was arraigned on December 16th and he entered a plea of not guilty. Pretrial motions were heard March 17 and 21, 1977. Dupard contended, inter alia, that because of the "not guilty" finding at the parole revocation hearing the State was collaterally estopped from prosecuting him on counts 1 and 2. He moved for dismissal of those counts.

The motion to dismiss was denied as were motions to suppress evidence obtained by police. Thereafter, based upon a stipulation regarding the evidence and the sufficiency thereof, the trial court found Dupard guilty on all counts. He appealed to the Court of Appeals on a number of grounds, and in an unpublished opinion Division One affirmed.

Dupard petitioned for discretionary review in this court. We granted review limited to a single issue: In a criminal case, is the state collaterally estopped from relitigating an issue previously decided in favor of the defendant at a parole revocation hearing?

The converse proposition has been resolved by this court. If a Washington state parolee is acquitted in a criminal trial, that acquittal does not bar the state from conducting a parole revocation hearing based upon the same incident. Standlee v. Smith, 83 Wash.2d 405, 518 P.2d 721 (1974). See also Standlee v. Rhay, 403 F.Supp. 1247 (E.D.Wash.1975), rev'd 557 F.2d 1303 (9th Cir. 1977).

The Standlee court relied upon "the rule that a difference in the degree of the burden of proof in the two proceedings precludes application of collateral estoppel." Standlee v. Smith, supra, 83 Wash.2d at 407, 518 P.2d at 722. ¹ The "beyond a reasonable doubt" standard applies in a criminal case, while a parole revocation hearing is governed by the less exacting "preponderance of the evidence" standard. See RCW 9.95.125. Thus, a parolee defendant might be acquitted in a criminal prosecution because the state was unable to meet the burden of proof "beyond a reasonable doubt", yet the same evidence could, under the lesser standard of proof, support parole revocation. See One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); Beckett v. Department of Social & Health Servs., 87 Wash.2d 184, 550 P.2d 529 (1976).

Chronologically, the proceedings in the instant case present the reverse pattern of Standlee. Dupard prevailed in a parole revocation hearing as to the incident ultimately charged as counts 1 and 2. Nonetheless, the State, through the Prosecuting Attorney for King County, proceeded to prosecute him under a more stringent standard of proof at a criminal trial. The question occurs, if the State did not meet the lesser burden of proof in the revocation hearing, should it not be precluded from relitigating that issue (counts 1 and 2) under the more stringent standard of proof required of it in a criminal trial?

Collateral estoppel, perhaps more descriptively denoted as issue preclusion, and res judicata are doctrines having a common goal of judicial finality. The principles underlying both doctrines are to prevent relitigation of already determined causes, curtail multiplicity of actions, prevent harassment in the courts, inconvenience to the litigants, and judicial economy. Bordeaux v. Ingersoll Rand Co., 71 Wash.2d 392, 429 P.2d 207 (1967); see generally 1B J. Moore, Federal Practice § 0.405 (1972).

Of the two doctrines, res judicata is the more comprehensive because it relates to a prior judgment arising out of the same cause of action between the parties. Collateral estoppel is less encompassing, barring relitigation of a particular issue or determinate fact. Both doctrines require a large measure of identity as to parties.

In 1970, the United States Supreme Court accorded collateral estoppel constitutional dimension by incorporating it into the Fifth Amendment protection against double jeopardy. ² There, the court speaking of collateral estoppel noted:

It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).

As to identity of parties, mutuality of parties is not a limiting ingredient of the collateral estoppel rule imposed by the Fifth and Fourteenth Amendments. It is sufficient that the party against whom the plea of collateral estoppel is asserted was a party or in privity with a party in the prior litigation. See Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971).

Here, the prosecutor asserts that the State was not a party at the parole revocation hearing because "the state" for purposes of parole revocation is not "the state" for purposes of criminal prosecutions. We find this contention to be without merit. Although the prosecutor was not a participant in the revocation proceeding, an assistant attorney general was. The same sovereign is involved in both instances.

In State v. Peele, 75 Wash.2d 28, 30, 448 P.2d 923, 924-25 (1968), we said:

It has been long established that the doctrines of res judicata and collateral estoppel do apply in criminal cases. See Annot., Modern Status of Doctrine of Res Judicata in Criminal Cases, Annot., 9 A.L.R.3d 203 (1966). These doctrines, as applied to criminal cases, bar relitigation of issues actually determined by a former verdict and judgment. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237 (, 92 L.Ed. 180) (1948); United States v. Burch, 294 F.2d 1 (5th Cir. 1961); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940). The application of collateral estoppel in a criminal action is a 2-step operation: the first is to determine what issues were raised and resolved by the former judgment, and the second is to determine whether the issues raised and resolved in the former prosecution are identical to those sought to be barred in the subsequent action.

Given the proposition that collateral estoppel applies in criminal cases, does it operate to bar a court (or jury) in a criminal prosecution from redetermining an issue previously resolved by an administrative agency ? State differently, is the disposition of the Board of Prison Terms and Paroles a "valid and final judgment" for collateral estoppel purposes?

It is reasonably well accepted that in appropriate circumstances estoppel can prevent relitigation of issues determined by an administrative agency acting in a judicial capacity:

When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.

United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966). See generally K. Davis, Administrative Law Text ch. 18 (3rd ed. 1972). There can be little doubt the Washington State Board of Prison Terms and Paroles acts in at least a quasi-judicial capacity when it conducts a parole revocation hearing. Procedures approximating judicial proceedings are mandated statutorily and constitutionally. See RCW 9.95.121-9.95.126; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); In re Akridge, 90 Wash.2d 350, 581 P.2d 1050 (1978).

The parole officer files allegations of violation of parole conditions and is represented by an assistant attorney general at the revocation hearing. That hearing is conducted before member(s) of the Board of Prison Terms and Paroles. The board is to make findings and conclusions upon the allegations of parole violations. RCW 9.95.125.

Despite the similarities between...