                                                                        FILED
                                                                    DECEMBER 1, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

ABDULLATIF ARISHI,                            )
                                              )        No. 33306-0-111
                     Appellant,               )
                                              )
      v.                                      )
                                              )        PUBLISHED OPINION
WASHINGTON STATE UNIVERSITY,                  )
                                              )
                     Respondent.              )

       SIDDOWAY, J. -Abdullatif Arishi challenges his expulsion from Washington

State University's (WSU's) doctoral program in Education, claiming the university failed

to afford him a full adjudicative proceeding required by the Washington Administrative

Procedure Act, chapter 34.05 RCW (AP A).

      The APA provides for only two types of adjudication: a presumptive full

adjudicative process that requires a hearing with some procedural guarantees, and a

simplified process that does not. The AP A does not authorize agencies to adopt

processes that fall somewhere in between. While this does not prevent agencies from

offering more procedural protections than are required in the simplified process, it does
No. 33306-0-111
Arishi v. Wash. State Univ.


mean that to determine whether full adjudication is warranted, the alternatives weighed

are statutory brief adjudication and full adjudication, not some in-between process that an

agency is willing to make available. 1

       The statutory brief adjudication procedure is inadequate where a college or

graduate student faces expulsion or is charged with sexual misconduct that would amount

to a felony under criminal law. For that reason, and because Mr. Arishi has demonstrated

substantial prejudice, we reverse the superior court and the underlying agency order,

award Mr. Arishi reasonable attorney fees, and remand for a full adjudication.

                                LEGAL BACKGROUND

       It is helpful to start with the legal framework in which Washington colleges and

universities adopt student disciplinary procedures. Washington colleges and universities

are "agencies" and are subject to the AP A, as are the "divisions, departments, or offices"

that act on their behalf. RCW 34.05.010(2), (7).

       The current version of the APA was enacted in 1988. LAWS OF 1988, ch. 288, §

18. The task force that worked on revising Washington's then-existing act used the

Model State Administrative Procedure Act (Model Act, 15 U.L.A. 1 (2000)), published in

1981 by the National Conference of Commissioners on Uniform State Laws "as a check



       1
        Additional procedural protections provided in a simplified adjudication might
affect whether a party petitioning for review of an administrative decision was
prejudiced, as discussed infra in Section V.

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list of relevant issues." William R. Andersen, The 1988 Washington Administrative

Procedure Act-An Introduction, 64 WASH. L. REV. 781, 782 (1989). The task force

undertook "a systematic comparison of the Model Act with the existing Washington act."

Id.

       The Model Act provides for what it calls a "formal" hearing process, which is the

presumptive procedure to be used in nonemergency, nondeclaratory adjudicative

proceedings. Model Act§ 4-201 cmt., 15 U.L.A. at 76. Among procedures required in

formal adjudications are the right to be advised and represented by counsel, id. § 4-203 at

81; a reasonable notice of hearing that includes prescribed minimal contents, id. § 4-206

at 84-85; a presiding officer with authority to issue subpoenas, discovery orders, and

protective orders, id. § 4-210 at 88; the opportunity to present evidence and conduct

cross-examination, id. § 4-211(2) at 89; the requirement that witnesses testify under oath

and the right to object to evidence (with an exception for hearsay), id. § 4-212 at 90-91;

and the entry of sufficient written findings that must be supported by "the kind of

evidence on which reasonably prudent persons are accustomed to rely in the conduct of

their serious affairs," id. § 4-215(d) at 95.

       Washington lawmakers provided in the AP A for a similar presumptive procedure

for nonemergency, nondeclaratory adjudications. RCW 34.05.410(1) ("Adjudicative

proceedings are governed by RCW 34.05.413 through 34.05.476 except as otherwise

provided."). They did not call Washington's presumptive procedure "formal

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Arishi v. Wash. State Univ.


adjudication," so we will refer to it as "full" adjudication. Full adjudication in

Washington includes the following procedures summarized by Professor Andersen:

       At the hearing, a party is entitled to appear in person and to be advised and
       represented by counsel. The new Act makes no significant change in the
       rules of evidence in adjudications, although there is a provision referring
       the presiding officer to the Washington Rules of Evidence "as guidelines
       for evidentiary rulings" where the Act itself is silent. Parties are entitled to
       respond, to present evidence ("good" hearsay evidence is explicitly made
       admissible), and to conduct such cross examination as is "necessary for full
       disclosure of all relevant facts and issues."

Andersen, supra, at 810-11 (footnotes omitted). In these and other respects,

Washington's full adjudication is similar and in some cases identical to formal

adjudication under the Model Act. 2 In a few instances, full adjudication provides more

rights and protections to respondents than does formal adjudication under the Model Act.

E.g., RCW 34.05.446(1) (authorizing attorneys for parties to issue subpoenas); RCW

34.05.461(4) (providing that a presiding officer's findings shall not be based exclusively


       2
         Compare RCW 34.05.428 (permitting a party to appear in person and be advised
and represented by counsel) with Model Act§ 4-203; compare RCW 34.05.434
(providing for at least seven days' advance written notice of hearing, with prescribed
minimal contents) with Model Act§ 4-206; compare RCW 34.05.446 (authorizing the
presiding officer to issue subpoenas and protective orders and providing that "[a]
subpoena may be issued with like effect by the agency or attorney of record in whose
behalf the witness is required to appear") with Model Act§ 4-210; compare RCW
34.05.449(2) (the opportunity to present evidence and conduct cross-examination) with
Model Act§ 4-211(2); compare RCW 34.05.452 (the right to object to evidence and
requiring that witnesses testify under oath) with Model Act§ 4-212; compare RCW
34.05.461 (requiring the entry of sufficient written findings that must be supported by
"the kind of evidence on which reasonably prudent persons are accustomed to rely in the
conduct of their affairs") with Model Act § 4-215( d).

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No. 33306-0-III
Arishi v. Wash. State Univ.


on inadmissible evidence "unless the presiding officer determines that doing so would not

unduly abridge the parties' opportunities to confront witnesses and rebut evidence").

       Both the Model Act and the AP A identify exceptional adjudications that can be

resolved using simplified procedures. The Model Act provides for two types of informal,

nonemergency adjudications: "conference adjudication" and "summary adjudication."

"Conference adjudication" is described by comments to the Model Act as a "' peeled

down' version of the formal adjudicative hearing" used in "relatively minor" matters.

Model Act§ 4-402 cmt., § 4-401 cmt., 15 U.L.A. at 109, 107-08. It may be used in the

following categories of matters: 3

     ( 1) a matter in which there is no disputed issue of material fact; or
     (2) a matter in which there is a disputed issue of material fact, if the matter
         involves only:
           (i)   a monetary amount of not more than [$1,000];
           (ii) a disciplinary sanction against a prisoner;
           (iii) a disciplinary sanction against a student which does not involve
                 expulsion from an academic institution or suspension for more
                 than [10] days;
           (iv) a disciplinary sanction against a public employee which does not
                involve discharge from employment or suspension for more than
                [10] days;




       3
        The Model Act further provides that use of the conference hearing procedure
may be used only if "its use in the circumstances does not violate any provision of law
and the matter is entirely within one or more categories for which the agency by rule
ha[s] adopted" such hearings. Model Act§ 4-401.

                                              5
No. 33306-0-III
Arishi v. Wash. State Univ.


           (v)   a disciplinary sanction against a licensee which does not involve
                 revocation, suspension, annulment, withdrawal, or amendment of a
                 license; or
           (vi) .... ]

Model Act§ 4-401 (emphasis added) (alterations in original).

       The even more peeled-down "summary adjudication" procedure provided by the

Model Act may be used in matters in which there are disputed facts, but that are even less

consequential. 4 Among eight categories of matters eligible for summary adjudication

under the Model Act are several relevant here: matters that present "a monetary amount

of not more than [$100]," "a reprimand, warning, disciplinary report, or other purely

verbal sanction without continuing impact against a ... student," or "any matter

having only trivial potential impact upon the affected parties." Model Act§ 4-502(3)(i),

(ii), and (viii) (emphasis added) (alteration in original).

       Washington lawmakers also created a simplified procedure that can be used in

some cases. But they departed from the Model Act's approach. Rather than provide for

conference or summary adjudication, Washington legislators provided for a single type of

simplified hearing that they called a "brief adjudicative proceeding." Under RCW

34.05.485 through 34.05.494 such a proceeding may be limited to the presiding officer


       4
         Here, too, use of the simplified procedure must not violate any provision of law
and the matter must be entirely within a category for which the agency has adopted
summary adjudications. Model Act§ 4-502(1) and (3). In addition, it may be used only
if "the protection of the public interest does not require the agency to give notice and an
opportunity to participate to persons other than the parties." Model Act§ 4-502(2).

                                               6
No. 33306-0-111
Arishi v. Wash. State Univ.


           •   giving each party an opportunity to be informed of the agency's view of the
               matter and to respond with the party's view, RCW 34.05.485(1)-(2);
           •   maintaining a record consisting of any documents regarding the matter that
               the presiding officer considered or prepared, RCW 34.05.494(1); and
           •   delivering an "initial order" to the parties within 10 days, consisting of a
               brief written statement of reasons for the presiding officer's decision and
               information about any internal administrative review available, RCW
               34.05 .485(3 )-(4 ).
       Four conditions must exist for an agency to use brief rather than full adjudication.

Brief adjudication may be used if:

            (a) The use of those proceedings in the circumstances does not violate
       any provision of law;
            (b) The protection of the public interest does not require the agency to
       give notice and an opportunity to participate to persons other than the
       parties;
            (c) The matter is entirely within one or more categories for which the
       agency by rule has adopted this section and RCW 34.05.485 through
       34.05.494; and
            (d) The issue and interests involved in the controversy do not warrant
       use of the procedures ofRCW 34.05.413 through 34.05.479.

RCW 34.05.482(1). RCW 34.05.482(2) explicitly disallows use ofbriefadjudication for

"public assistance and food stamp or benefit programs provided for in Title 74 RCW,

including but not limited to public assistance as defined in RCW 74.04.005(1)."

(Reviser's note omitted.) According to Professor Andersen, "Concern about the quality

of informal hearings in the welfare area led the legislature to prohibit their use in certain

welfare proceedings." Andersen, supra, at 818.

       Thirty-nine Washington colleges and universities have adopted administrative

regulations published in the Washington Administrative Code (WAC). As demonstrated

                                              7
No. 33306-0-III
Arishi v. Wash. State Univ.


by a summary included as an appendix, their provisions for the conduct of student

disciplinary proceedings vary, including on the issue of whether and when students being

disciplined by their college or university have a right to a full adjudication. As illustrated

by the appendix, the University of Washington and 11 other Washington colleges or

universities would have conducted or allowed a full adjudication in this case.

                               FACTS AND PROCEDURE

       In the spring semester of 2014, Abdullatif Arishi, then a Ph.D. graduate student at

WSU, was charged by the Whitman County prosecutor with the third-degree rape and

molestation of a 15-year-old girl. Mr. Arishi's relationship with the minor came to the

attention of a state trooper who responded to the scene of a car accident in which the 15-

year-old, identified in court filings as "MOS," rear-ended another car. Clerk's Papers

(CP) at 100-01. She did not have a driver's license or a learner's permit. The car she

was driving belonged to Mr. Arishi, who she knew as "Alex," and who was her

passenger. CP at 100.

       Several facts that came to the trooper's attention caused him concern about the

Arishi-MOS relationship. Mr. Arishi was 40 years old. MOS's mother, who the trooper

contacted, had no idea that MOS was not at home, or that she was with a 40-year-old

man. At the time of the accident, MOS, whose mother had pulled her out of school over

bullying issues, was supposed to be working on her studies at home.




                                              8
No. 33306-0-111
Arishi v. Wash. State Univ.


       Since MOS lived in Pullman, the trooper contacted the Pullman police department

upon completing his response to the accident and passed along his concerns. The matter

was assigned to Detective Todd Dow.

       Detective Dow promptly called the hospital where MOS was being treated for

minor injuries and spoke with MOS's mother. The mother was aware MOS had been

spending time with someone named Alex for several weeks and she believed they had

been communicating for approximately two months. MOS had described Alex to her

mother as "a college kid or something like that," and as "18 to 19 years [old]." CP at

239, 49. MOS's mother told the detective she had learned recently that Alex paid some

ofMOS's cell phone bills and had given her money. She was aware that the day before

the accident, Alex bought MOS a cell phone. She did not know the extent of the sexual

activity between MOS and Alex. She only learned on the day ofMOS's auto accident

that Alex was actually 40 years old, that MOS had not spent the day studying at home

like she was supposed to, and that Alex had offered to give MOS a car.

      At Detective Dow's request, the mother had MOS contact him, and Detective Dow

interviewed MOS twice. MOS told the detective she met Mr. Arishi a couple of months

earlier on a dating website called "Badoo." CP at 100. Asked to describe her

relationship with Mr. Arishi, MOS told the detective she didn't really feel like she and

Mr. Arishi were "'together,"' but she "[didn't] know ifhe sees it the same way." CP at

50. She said Mr. Arishi spoke of her as "his 'girlfriend.'" Id. She claimed she revealed

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No. 33306-0-111
Arishi v. Wash. State Univ.


to Mr. Arishi that she was only 15 and he told her women in his country get married

when they are 16. Asked about her sexual contact with Mr. Arishi, MOS told the

detective that the first time she met Mr. Arishi he tried having sex with her, but they did

not. According to the detective's report, "She said that she didn't remember anything

else from the first time she saw him." CP at 51. She told him that on a later occasion,

Mr. Arishi asked her to perform oral sex on him and she declined, although she did

briefly touch his genitals. Finally, she told the detective that on the day of the accident,

Mr. Arishi touched her breast and thigh on top of her clothing as she was driving his car.

       When Detective Dow realized the sexual contact MOS described had all taken

place in a car in Colfax, he referred the matter to the Whitman County Sheriffs

Department, where it was assigned to Sergeant Chris Chapman. According to a summary

of probable cause completed by Sergeant Chapman, MOS told him that the first time she

was with Mr. Arishi, he touched her vagina and anus and digitally penetrated her.

       Mr. Arishi pleaded not guilty to the charges filed against him in Whitman County.

The statutes under which he was charged are based on sexual contact with someone under

the age of consent, which in Washington is 16. It is a defense to the crimes, and a

defense Mr. Arishi asserted in the criminal case, that at the time of the offense he

"reasonably believed the alleged victim to be [at least 16] based upon declarations as to

age by the alleged victim." RCW 9A.44.030(2).




                                              10
No. 33306-0-III
Arishi v. Wash. State Univ.


       Upon learning of Mr. Arishi's arrest, WSU notified him it was charging him with

violating WSU's standards of student conduct and its Policy Prohibiting Discrimination,

Sexual Harassment, and Sexual Misconduct, and was suspending his attendance and

denying him access to campus, effective immediately. It notified him he should contact

the dean of students to discuss a hearing of the student conduct board that would be

convened in the near future.

       WSU' s administrative regulations include WAC 504-04-010, which provides that

student conduct proceedings, without exception, "are matters to be treated as brief

adjudications pursuant to RCW 34.05.482 through 34.05.491." WSU's only regulation

addressing the possibility of a full adjudication for a student appears at WAC 504-26-

407(1 )( c) and (6)(b); it provides that after a student conduct hearing, an aggrieved student

may appeal, in which event any appeals board convened, or the president, or the

president's designee, "shall make any inquiries necessary to ascertain whether the

proceeding must be converted to a formal adjudicative hearing under the Administrative

Procedure Act."

       Despite WSU's rules denying him a full adjudication, Mr. Arishi requested one,

contending the "issues and interests involved" warranted the presumptive AP A

procedure. CP at 167. His request was denied. 5


       5
        WSU's lawyer was asked at oral argument of the appeal whether WSU has ever
found that a disciplinary action required a full adjudication. To her knowledge, it never

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No. 33306-0-111
Arishi v. Wash. State Univ.


       In a one-hour student conduct hearing conducted on May 21, 2014, the director of

WSU's Office of Student Standards and Accountability presented the charges against Mr.

Arishi. Under the university's student conduct procedure, the rules of evidence were not

applied, only board members could question witnesses, proposed student questions had to

be submitted in writing to a board member who would decide whether or not to ask them,

and Mr. Arishi had no opportunity to subpoena witnesses or documents. Mr. Arishi

attended the hearing with the lawyer representing him in his pending criminal case, but

pursuant to student conduct rules, the lawyer could act only as a private advisor and could

not address witnesses or the conduct board.

       WSU called two witnesses. The first was Kimberly Anderson, the director of

WSU's Office for Equal Opportunity. She testified that she investigated the allegations

against Mr. Arishi by speaking to a deputy prosecutor and obtaining Whitman County's

probable cause affidavit, police report, and other documents in Mr. Arishi's criminal

case; by interviewing Detective Dow; and by interviewing Sergeant Chapman. She

testified she had also attempted to interview Mr. Arishi. He and his criminal defense

lawyer met with her and presented a general denial, but given the pending prosecution

and United States Constitutional Fifth Amendment concerns, Mr. Arishi refused to




has. Washington Court of Appeals oral argument, Arishi v. Wash. State Univ., No.
33306-0-111 (Apr. 28, 2016) at 15 min., 41 sec. through 16 min., 14 sec. (on file with the
court).

                                              12
No. 33306-0-111
Arishi v. Wash. State Univ.


answer specific questions. Asked whether she made any attempts to contact the alleged

victim, Ms. Anderson suggested she had, through the deputy prosecutor, "and thus far she

has declined to be interviewed." CP at 228. 6

       Because she had not spoken with the victim or been able to question Mr. Arishi,

Ms. Anderson told the conduct board that her office "had to rely on the assessment of the

two police, or the police and the deputy," adding:

       [W]e did question them, you know, sort of at length about their assessment,
       why they made that assessment, kind of applying the similar pr~cess that
       we would apply had we interviewed directly, and found that that was
       sufficient for us.

CP at 228. In her investigation report admitted into evidence, she asserted that both

Detective Dow and Sergeant Chapman described MOS as credible.

       WSU's second witness at the conduct hearing was Detective Dow, who testified to

his interviews of MOS. He was not asked if he found MOS to be credible and did not

volunteer an opinion on that score. Asked whether MOS "seem[ ed] real mature for her

age?", the detective responded, "[t]he face" looks young. CP at 242. Questioned further,

he said, "She's, I guess, fully physically developed. She doesn't have a young body in

terms of, but her face does look-I don't know how do you describe that?" CP at 245.



      6
         The agency record contains two e-mails from Ms. Anderson to Deputy
Prosecutor Merritt Decker. In the e-mails, Ms. Anderson provides her contact
information and conveys an invitation that MOS may contact her. She does not express a
desire to interview MOS or request that opportunity. See CP at 67, 104.

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Arishi v. Wash. State Univ.


       Mr. Arishi did not testify but did submit a sworn written statement. It set forth

what it stated was "a true and accurate quote of the Badoo website's terms of use,"

including:

              Who can use Badoo? Badoo is a meeting place for adults. You may
      only use and become a registered member of Badoo if you are 18 years old
      or older, or the age of majority in the country in which you reside, if that
      happens to be greater than 18.
              You warrant that you have the right, authority, and capacity to enter
      into and be bound by the terms and that by using Badoo, you will not be
      violating any law or regulation of the country in which you are a resident.

CP at 247. Mr. Arishi's statement went on to say, "[T]he young woman in this case, user

name for her Badoo profile, was Panda. Her profile represented that she was 19 years of

age." CP at 248.

       When given the chance to make a closing statement, Mr. Arishi told the board he

had started WSU's doctoral program three years earlier, in the spring of 2011, and was

one semester away from getting his Ph.D.

       In a written decision dated May 23, 2014, the conduct board found Mr. Arishi

responsible for all violations charged by WSU. It expelled him and trespassed him from

the WSU campus until January 1, 2020. While finding that MOS had registered as

"Panda" on the Badoo website as a 19-year-old woman, and that "it is quite possible that

when you conversed with her on line that you did think that she was an adult," it

nonetheless found, "[t]he circumstances were such that once you met her face to face you

knew that she was too young." CP at 41.

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No. 33306-0-111
Arishi v. Wash. State Univ.


          Mr. Arishi appealed the conduct board's order to WSU's appeals board, arguing

the procedures had not been adequate to protect his interests and the decision was not

supported by substantial evidence. He also renewed his request for a full adjudication.

The appeals board affirmed the conduct board's order and denied the request for a full

adjudication, stating that following review, it determined that converting the matter to a

full adjudication "was not necessary." CP at 16. The appeals board's decision was

reviewed by WSU' s president, who found no reason to intervene.

          Mr. Arishi petitioned for judicial review by the Whitman County Superior Court,

which affirmed WSU's decision.

          Mr. Arishi appeals. At oral argument of the appeal, Mr. Arishi's lawyer made an

unchallenged representation that Mr. Arishi's expulsion from WSU led to loss of his

student visa, he had returned to Saudi Arabia, and he had been unable to obtain

admittance to any other graduate program in the United States to complete his doctoral

studies. Washington Court of Appeals oral argument, Arishi v. Wash. State Univ., No.

33306-0-111 (Apr. 28, 2016) at 35 min., 40 sec. through 35 min., 55 sec. (on file with the

court).

                                        ANALYSIS

          The AP A governs judicial review of an agency action. Alpha Kappa Lambda

Fraternity v. Wash. State Univ., 152 Wn. App. 401,413,216 P.3d 451 (2009). Of the

nine statutory bases on which an agency order can be reversed, Mr. Arishi argues five

                                              15
     No. 33306-0-111
     Arishi v. Wash. State Univ.
I
I
I
     support reversal here: (1) the agency engaged in an unlawful procedure or decision-

I    making process, or failed to follow a prescribed procedure, (2) the agency erroneously


II   interpreted or applied the law, (3) the agency did not decide all issues requiring resolution

     by the agency, (4) the agency issued an order inconsistent with its own rule, or (5) the
I
     agency issued an order that is arbitrary or capricious. RCW 34.05.570(3) (c), (d), (f), (h),

     and (i).

            In reviewing agency action, we stand in the same position as the superior court

     and review the administrative record rather than the superior court's findings or

     conclusions. Edelman v. State, 160 Wn. App. 294, 303, 248 P.3d 581 (2011). We "view

     the evidence and any reasonable inferences in the light most favorable to the party that

     prevailed in the highest forum exercising fact-finding authority." Schofield v. Spokane

     County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). Mr. Arishi bears the burden of

     showing invalid action. RCW 34.05.570(1)(a). Relief is available only ifhe shows he

     was substantially prejudiced by the action complained of. RCW 34.05.570(1)(d). In the

     context of judicial review of an agency action, we may review the validity of a relevant

     agency rule. RCW 34.05.570(2)(a).

            No Washington decision has construed RCW 34.05.482(l)(d) to determine what

     issues and interests warrant use of full adjudication. As always, our purpose in

     construing the statute is "' to determine and give effect to the intent of the legislature.'"

     State v. Evans, 177 Wn.2d 186,192,298 P.3d 724 (2013) (quoting State v. Sweany, 174

                                                   16
No. 33306-0-111
Arishi v. Wash. State Univ.


Wn.2d 909,914,281 P.3d 305 (2012)). We derive that intent solely from the plain

language used by the language when possible. See id.

       Although Mr. Arishi identifies five statutory bases for challenging WSU's final

order, we find two to be dispositive: WSU engaged in an unlawful decision-making

process and erroneously applied the law. RCW 34.05.570(3)(c) and (d). Both of those

challenges present issues of law that we review de novo. Darkenwald v. Emp. Sec. Dep 't,

183 Wn.2d 237,244,350 P.3d 647 (2015).

              I.  An agency may not substitute brief adjudication for the
         presumptively-required full adjudication unless all of the conditions of
                             RCW 34.05.482 are satisfied

       RCW 34.05.482(l)(c) plainly requires agencies who wish to use brief adjudication

to adopt a rule identifying the categories of matters for which it adopts the simplified

procedures provided by RCW 34.05.485 through 34.05.494. WSU adopted WAC 504-

04-010, identifying seven categories of matters that would be handled by brief

adjudication, including "[s]tudent conduct proceedings." WAC 504-04-010(1).

       RCW 34.05.482(l)(d) identifies an independent and equally important condition

that must apply before an agency uses brief adjudication: it cannot use the simplified

procedure if the issue and interests involved in a controversy warrant use of the full

adjudication procedures provided by RCW 34.05.413 through .479. Presumably, that

requirement will be given consideration when an agency identifies the matters for which

it adopts brief adjudication. But if an agency adopts brief adjudication for a type of

                                             17
No. 33306-0-111
Arishi v. Wash. State Univ.


matter that ultimately warrants full adjudication, the subsection (d) condition cannot be

ignored simply because the subsection (c) condition was satisfied.

       Where full adjudication is warranted, an agency's rule that mandates brief

adjudication for that category of matter without allowing for exceptions is not adopted

"in accordance with the standards provided in RCW 34.05.482." RCW 34.05.410(l)(a).

In that event, the adjudication proceeding is "governed by RCW 34.05.413 through

34.05.476": the procedures for full adjudication. RCW 34.05.410.

           II. Case law informs the meaning of the statutory mandate that brief
            adjudication may not be used if the issue and interests involved warrant
                                   use offull adjudication

       "Issue" and "interests" as used in the expression "issue and interests involved in

the controversy do not warrant [full adjudication]", RCW 34.05.482(l)(d), have a plain

meaning in the context of a dispute requiring adjudication. "Issue," in that context,

means "a point in question of law or fact; specif: a single natural point of law or fact

depending in a suit that is affirmed by one side and denied by the other and that is

presented for determination at the conclusion of the pleadings." WEBSTER'S THIRD NEW

INTERNATIONAL DICTIONARY 1201 (1993). "Interest" means "[T]he state of being

concerned or affected esp. with respect to advantage or well-being: GOOD, BENEFIT,

PROFIT <engaged a lawyer to look after his -s> <acting always in his own -> <each

faction made concessions in the common -> <speed laws passed in the - of safety>." Id.

at 1178.

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No. 33306-0-III
Arishi v. Wash. State Univ.


       Why and when issues and interests warrant use of full adjudication is somewhat

less clear. The parties implicitly agree that decisions of the United States Supreme Court

construing the minimum requirements of due process inform how issues and interests

might warrant use of a formal process. Cf State v. Roggenkamp, 153 Wn.2d 614,621,

106 P.3d 196, aff'd, 153 Wn.2d 614 (2005) (relevant case law may provide guidance in

construing the meaning of an ambiguous statute). As observed by a leading treatise, due

process jurisprudence not only influences legislatures drafting procedural provisions but

also-because of its relevance to legislators-influences the construction of procedural

provisions by the courts. 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LA w TREATISE §

9 .1, at 559-60 (4th ed. 2002). Legislatures "can, of course, choose procedures more

demanding than those dictated by due process, but their choice of procedures is

influenced heavily by their beliefs concerning the procedures required by due process."

Id. at 560.

       Several decisions of the United States Supreme Court beginning in the 1970s are

particularly influential. In Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d

287, ( 1970), the Court held that the nature of a decision to terminate public assistance

(welfare) benefits was such that most elements of a trial-type hearing should be made

available before termination. "[T]ermination of aid pending resolution of a controversy

over eligibility may deprive an eligible recipient of the very means by which to live while

he waits." Id. at 264 (emphasis omitted). The trial-type elements required included

                                             19
No. 33306-0-111
Arishi v. Wash. State Univ.


timely and adequate notice detailing reasons for agency action and "an effective

opportunity to defend by confronting any adverse witnesses and by presenting [the

recipient's] own arguments and evidence orally." Id. at 268. Those trial-like elements

are important where a case presents a risk of termination "resting on incorrect or

misleading factual premises." Id. "In almost every setting where important decisions

turn on questions of fact, due process requires an opportunity to confront and cross-

examine adverse witnesses." Id. at 269.

       The Court also held that a recipient at risk of termination of welfare benefits "must

be allowed to retain an attorney ifhe so desires," for reasons the Court described:

       Counsel can help delineate the issues, present the factual contentions in an
       orderly manner, conduct cross-examination, and generally safeguard the
       interests of the recipient. We do not anticipate that this assistance will
       unduly prolong or otherwise encumber the hearing.

Id. at 270-71.

       In 1975, the Court addressed the minimum due process owed public high school

students temporarily suspended from school (for 10 days or less) in Goss v. Lopez, 419

U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). It held that the timing and content of

notice and "the nature of the hearing ... depend on appropriate accommodation of the

competing interests involved." Id. at 579. It described the students' interest in temporary

suspension cases as "to avoid unfair or mistaken exclusion from the educational process,

with all of its unfortunate consequences." Id. It also pointed to its earlier recognition that


                                             20
No. 33306-0-111
Arishi v. Wash. State Univ.


individuals have an interest in receiving notice and being heard"' [w]here a person's

good name, reputation, honor, or integrity is at stake because of what the government is

doing to him.'" Id. at 574 (quoting Wisconsin v. Constantineau, 400 U.S. 433,437, 91 S.

Ct. 507, 27 L. Ed. 2d 515 (1971)) .

      . The Court recognized that "the length and consequent severity of a deprivation"

was a "factor to weigh in determining the appropriate form of hearing," and that "[a]

short suspension is ... a far milder deprivation than expulsion." Id. at 576. Weighing

the interest of elementary and secondary students in "[ e]vents calling for discipline"

which it characterized as "frequent occurrences," the Court held that in connection with a

suspension of 10 days or less, it sufficed that the student "be given oral or written notice

of the charges against him and, if he denies them, an explanation of the evidence the

authorities have and an opportunity to present his side of the story." Id. at 580-81.

       In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976),

the Court characterized its prior decisions as indicating that the specific dictates of due

process in a given case

       generally requires consideration of three distinct factors: first, the private
       interest that will be affected by the official action; second, the risk of an
       erroneous deprivation of such interest through the procedures used, and the
       probable value, if any, of additional or substitute procedural safeguards;
       and finally, the Government's interest, including the function involved and
       the fiscal and administrative burdens that the additional or substitute
       procedural requirement would entail.




                                             21
No. 33306-0-111
Arishi v. Wash. State Univ.


       Mathews involved agency terminations of disability benefits and whether they

required the same pretermination protections as the welfare benefits involved in

Goldberg. As to the first factor, the private interest affected, the court held that "the

degree of potential deprivation that may be created by a particular decision is a factor to

be considered in assessing the validity of any administrative decisionmaking process."

Id. at 341. Although the hardship imposed upon an erroneously terminated disability

recipient "may be significant," it was likely less so than erroneous termination of welfare

benefits, since a disabled recipient may have private resources or be eligible for other

government assistance. Id. at 342.

       As to the second factor, the risk of error and value of procedural safeguards, the

Court considered the nature of the most frequently disputed issues of fact and the

character of evidence presented in different sorts of cases. It distinguished termination of

disability benefit decisions from those involving welfare recipients, pointing out that

disability determinations are made in reliance on what are in most cases "' routine,

standard, and unbiased medical reports by physician specialists."' Id. at 344 (quoting

Richardson v. Perales, 402 U.S. 389,404, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). By

contrast, in welfare termination cases, "a wide variety of information may be deemed

relevant, and issues of witness credibility and veracity often are critical." Id. at 343-44.

Oral evidence and cross-examination are more important safeguards of accuracy in the

latter type of case.

                                             22
No. 33306-0-111
Arishi v. Wash. State Univ.


       As to the third factor-the government's interest-the Court characterized the

required inquiry as not "[t]inancial cost alone," but rather, "[a]t [what] point the benefit

of an additional safeguard to the individual affected by the administrative action and to

society in terms of increased assurance that the action is just, may be outweighed by the

cost." Id. at 348.

       Finally, Board of Curators v. Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d

124 (1978) involved the due process required when a graduate student is dismissed from

a public university for academic deficiencies. The Court distinguished the risk of error

and value of procedural safeguards when a school makes academic decisions from the

risk and value when it makes decisions about disciplining a student for misconduct.

"[F]ar less stringent procedural requirements" are called for in the case of an academic

dismissal. Id. at 86.

       "Misconduct is a very different matter from failure to attain a standard of
       excellence in studies. A determination as to the fact involves investigation
       of a quite different kind. A public hearing may be regarded as helpful to
       the ascertainment of misconduct and useless or harmful in finding out the
       truth as to scholarship."

Id. at 87 (quoting Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 102 N.E. 1095

(1913)). By contrast, "[T]he determination whether to dismiss a student for academic

reasons requires an expert evaluation of cumulative information and is not readily

adapted to the procedural tools of judicial or administrative decisionmaking." Id. at 90.

Cf Ritter v. Bd. of Comm 'rs ofAdams County Pub. Hosp. Dist. No. 1, 96 Wn.2d 503,

                                             23
No. 33306-0-III
Arishi v. Wash. State Univ.


511, 637 P.2d 940 (1981) (the risk of a hospital's unjustified suspension of physician for

quality assurance reasons is small when its board has worked closely with the physician

for years).

       In enacting the AP A in 1988, the legislature acted consistently with Goldberg

when it provided that brief adjudication was not authorized for public assistance and food

stamp or benefit programs. RCW 34.05.482(2). We conclude that in providing that

issues and interests might warrant full adjudication, it likewise had the United States

Supreme Court's due process jurisprudence in mind. We construe RCW 34.05.482(l)(d)

accordingly.

       An issue may warrant full adjudication where the nature of disputed facts and

character of the relevant evidence make the trial-like elements of full adjudication

valuable safeguards against the risk of an erroneous deprivation.

       Private interests may warrant full adjudication where the severity of a

deprivation-its length, a resulting stigma, or its impact on a person's life or liberty-

justify additional safeguards for the individual affected.

       The interests of the agency must also be considered, not in terms of financial cost

alone, but in terms of whether the cost or relative burden to the agency of full

adjudication outweighs the importance of additional procedural safeguards.




                                             24
No. 33306-0-III
Arishi v. Wash. State Univ.


          Ill   At issue is whether the brief adjudication procedures set forth in
                         RCW 34. 05.485-.494 are adequate in this case

       Having construed the AP A to plainly require full adjudication when the issue and

interests warrant it, and having construed the issues and interests that must be considered,

one disputed issue remains: what alternative procedures are to be compared. The APA

plainly provides that the determination involves consideration of the only two types of

adjudication provided by the AP A, which are full adjudication and statutory brief

adjudication.

       WSU errs in assuming that our task in this case is to decide whether a hybrid

process that it has adopted and that it used in Mr. Arishi's case meets the minimum

requirements of constitutional due process. 7 Mr. Arishi does not contend that full

adjudication was constitutionally required: he argues it was statutorily required. As

Professor Pierce points out, "Courts invoke the Due Process Clause to determine the

procedures an agency must use to make a decision in only a tiny fraction of the millions

of proceedings agencies conduct each year." 2 PIERCE, supra, § 9.1 at 559. They are


      7
         As Mr. Arishi points out, RCW 34.05.482(l)(a) provides that agencies may use
brief adjudication only if"[t]he use of those proceedings in the circumstances does not
violate any provision oflaw." The APA has already ruled out unconstitutional
proceedings before one reaches RCW 34.05.482(l)(d).
       Subsection (l)(d)'s concern with whether issues and interests warrant full
adjudication must refer to something different. We construe statutes so that "' all the
language used is given effect, with no portion rendered meaningless or superfluous.'"
G-P Gypsum Corp. v. Dep't ofRevenue, 169 Wn.2d 304,309,237 P.3d 256 (2010)
(quoting State v. JP., 149 Wn.2d 444,450, 69 P.3d 318 (2003).

                                            25
No. 33306-0-111
Arishi v. Wash. State Univ.


much more likely to base the procedure required on controlling regulations or statutes.

See id. In our case, the controlling statute is the AP A.

       A key reason the drafters of the Model Act included only a few adjudication

options was uniformity and predictability. As they explained, if some variations are not

available

       many agencies will either attempt to obtain enactment of statutes to
       establish procedures specifically designed for such agencies, or proceed
       "informally" in a manner not spelled out by any statute. . . . [W]ide
       variations in procedure will occur from one agency to another, and even
       within a single agency[,] ... producing complexity for citizens, agency
       personnel and reviewing courts, as well as for lawyers.

Model Act§ 4-201 cmt., 15 U.L.A. at 77. The Model Act's drafters also emphasized,

"The number of available procedures in the administrative procedure act should not,

however, be so large as to make the act too complicated or to create uncertainty as to

which type of procedure is applicable." Id.

       Our Supreme Court endorsed this reasoning in Seattle Building & Construction

Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 920 P.2d 581

(1996), in which it rejected an agency's argument that it could develop its own, adequate

substitute for the types of adjudication authorized under the AP A. Several union labor

councils and apprenticeship and training committees challenged the Washington State

Apprenticeship and Training Council's failure to hold an adjudicatory hearing to consider

a contested application for approval of a competing apprenticeship program. The court


                                              26
No. 33306-0-III
Arishi v. Wash. State Univ.


held approval of such voluntary applications to be licenses within the meaning ofRCW

34.05.010(9)(a), and therefore subject to being "conducted as adjudicative proceedings"

by RCW 34.05.422(l)(b). Seattle Bldg. at 800 (quoting RCW 34.05.422(l)(b). Although

the statute does not state what type of adjudicative proceeding is required, the court held

that the APA required the presumptive full adjudication. Id. at 804.

       The court rejected the Apprenticeship Council's argument that deference was due

its interpretation that full adjudication was not required, observing that deference to

agency interpretation of a statute is appropriate when a statute is ambiguous and "the

agency is charged with its administration and enforcement." Id. at 799. The myriad state

agencies that are subject to the AP A are not charged with its administration and

enforcement.

       The court also rejected the applicant's argument that the Apprenticeship Council

had a long history of regulation not requiring adjudicative hearings, and had

demonstrated that its existing system of program approval was adequate. The court

responded:

       The AP A does not allow discretion to forego required formal adjudicatory
       proceedings on the ground that another system is alleged to be adequate.

Id. at 803. It continued:

       Appellants were deprived of significant procedural safeguards available in
       formal adjudicatory proceedings, including testimony taken under oath, the
       opportunity for structured cross-examination, and an agency order
       containing requisite findings, conclusions, and the reasons therefor. Absent

                                             27
No. 33306-0-111
Arishi v. Wash. State Univ.


       compliance with these and other procedural requirements, judicial review
       of the merits of agency action is significantly hampered and may even be
       effectively foreclosed. This matter must be remanded for a formal
       adjudicatory hearing.

Id. at 804 ( citations omitted).

       The APA is clear. Except as provided by RCW 34.05.410(1)(a) through (l)(c)-

and statutory brief adjudication is the only conceivable exception that could apply to the

hearing Mr. Arishi challenges 8-adjudicative proceedings are governed by the provisions

describing full adjudication.

           IV. Brief adjudication was an inadequate process given the issue and
                                   interests in Mr. Arishi 's case

       Brief adjudication "requires only that the agency inform the party of the agency's

view on the matter, give the party an opportunity to explain his or her view, and give the

party a statement of reasons for the agency decision." Andersen, supra, at 818-19; RCW

34.05.485.

       The issue in Mr. Arishi's case pitted his version of events against the version of

events charged by Whitman County. Only two people had firsthand knowledge of the

Arishi-MOS dealings-Mr. Arishi and MOS-and neither of them was personally known

to members of the conduct board or to any witness who testified. Because assessment of




       8
        "Emergency" action was taken against Mr. Arishi by WSU initially; he does not
challenge that proceeding.

                                            28
No. 33306-0-111
Arishi v. Wash. State Univ.


veracity and credibility were key, safeguards of the subpoena power, oral testimony, and

cross-examination were critical.

       In this connection, WSU argues that MOS could not have been compelled to

appear at the hearing. It cites to Title IX of the Education Amendments of 1972, 20

U.S.C. §§ 1681 to 1688, and to guidance from the Office for Civil Rights. Br. ofResp't

at 28. We are unpersuaded by WSU that Title IX applied to its investigation or charges

in this case. MOS was not only not a student at WSU, she was not a student at any

federally-funded school. She was being homeschooled. Nor did any of the conduct that

was the basis for WSU's charges take place on WSU property.

       As to interests, the charges presented the risk of severe hardship of several sorts.

Mr. Arishi faced the risk of losing his financial and personal investment in three years of

doctoral education, a semester before its anticipated completion. His lawyer's

representation that he would not be able to complete the program elsewhere is credible.

See James M. Picozi, Note, University Disciplinary Process: What's Fair, What's Due,

and What You Don't Get, 96 YALE L.J. 2132, 2138 (1987) ("The most significant

alteration of an expelled student's status, though, is his inability to re-enroll at another

university. A subsequent university to which a student may apply always knows of the

reasons for his prior dismissal. . . . If he leaves without having earned his degree, the

student must make an affirmative showing to any subsequent university to which he

applies that he left the original university in 'good standing.'").

                                              29
No. 33306-0-111
Arishi v. Wash. State Univ.


       He faced the damage to his personal reputation from a finding that he had

committed what amounts to class C felonies. RCW 9A.44.079 (rape of a child in the

third degree), 9A.44.089 (child molestation in the third degree). He faced the loss of his

visa and his ability to remain legally in the United States, a right that the United States

Supreme Court has recognized may be more important to a person than even a potential

jail sentence. Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 176 L. Ed. 2d 284

(2010).

       Given these issues and interests, the statutory brief adjudication process would not

have been adequate. Cf Liu v. Portland State Univ., 281 Or. App. 294,300, __ P.3d

__ (2016) (Under Oregon's administrative procedure act, charges against student

required trial type contested case procedures because the type of hearing was

"substantially of the character that would necessitate [such] procedures" as provided by

former Or. Rev. Stat.§ 351.088 (2011)).

                  V Mr. Arishi was prejudiced by invalid agency action

       Finally, even having demonstrated invalid agency action, Mr. Arishi must show

substantial prejudice from the action complained of. RCW 34.05.570(l)(d). No

Washington decision has identified the appropriate test for prejudice in this context.

       In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

( 1984), the United States Supreme Court considered which standard of prejudice was

appropriately applied when a criminal defendant claimed to have been denied effe~tive

                                              30
No. 33306-0-111
Arishi v. Wash. State Univ.


representation of counsel. It rejected the high standard required for newly-discovered

evidence, because a motion seeking to present new evidence "presupposes that all the

essential elements of a presumptively accurate and fair proceeding were present in the

proceeding whose result is challenged." Id. at 694. By contrast, "[a]n ineffective

assistance claim asserts the absence of one of the crucial assurances that the result of the

proceeding is reliable, so finality concerns are somewhat weaker and the appropriate

standard should be somewhat lower." Id. In such a case, "[t]he result of a proceeding

can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of

counsel cannot be shown by a preponderance of the evidence to have determined the

outcome." Id.

       The Court in Strickland likened ineffective assistance of counsel to cases where

exculpatory information is not disclosed to the defense by the prosecution, and where

testimony is unavailable to the defense because of government deportation of a witness-

all situations where a crucial assurance of a reliable outcome is absent. It found the

proper standard for prejudice in such cases to be the same: a defendant must show that

there is a reasonable probability that, but for the problematic representation or

prosecution, the result of the proceeding would have been different. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome." Id.

       We find that the same considerations apply where invalid agency action deprives a

party of a crucial assurance of a reliable outcome. We hold that the Strickland standard is

                                             31
No. 33306-0-111
Arishi v. Wash. State Univ.


the appropriate standard to determine prejudice when the issues and interests warrant full

adjudication and the agency fails to afford it.

       In assessing prejudice, we do not compare full adjudication with statutory brief

adjudication; instead, we compare the process the agency actually provided with full

adjudication. (Accordingly, where an agency provides more process than statutory brief

adjudication, it might avoid reversal in some cases, by preventing prejudice.) Mr. Arishi

must show a reasonable probability that had he been provided with all of the rights and

safeguards available in full adjudication, the result of the proceeding would have been

different.

       Mr. Arishi makes that showing, demonstrating a probability sufficient to

undermine confidence in the outcome. He contends he would have subpoenaed MOS.

Perhaps she would have been credible. But the fact that MOS did not testify and was

never cross-examined undermines confidence in the outcome. This is particularly so in

light of evidence undermining her credibility: she misrepresented her age on Badoo as 19,

misrepresented "Alex's" age to her mother, was going out during the daytime when she

was supposed to be doing homework at home, was driving illegally, and had a different

version of events when interviewed by Sergeant Chapman than she did when interviewed

twice by Detective Dow. Mr. Arishi also contends that, in and of itself, the opportunity

for the conduct board to see MOS would have supported his defense that he reasonably

believed she was 19.

                                             32
No. 33306-0-111
Arishi v. Wash. State Univ.


       The denial of representation by counsel also undermines confidence in the result.

Had Mr. Arishi been represented, his lawyer could have alerted the conduct board to the

problem with relying on testimony about Sergeant Chapman's and Detective Dow's

opinions. Entirely apart from the fact that the opinions were presented through hearsay

(hearsay can be admitted in full adjudications), "Obvious opinions on credibility ... are

barred by Rule 608, and the point is beyond debate. Obvious opinions on credibility have

seldom been considered by Washington's appellate courts because there is nothing that

can be argued on appeal to make them admissible." SA KARL B. TEGLAND,

WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE§ 608.16, at 458 (6th ed. 2016).

A police officer's "purported 'expert' opinion[]" that a witness is truthful is no exception.

State v. Wilber, 55 Wn. App. 294, 299, 777 P.2d 36 (1989).

       Mr. Arishi is therefore entitled to relief.

                                       VI. Attorney fees

       Mr. Arishi requests an award of costs and reasonable attorney fees on appeal under

the "Equal Access to Justice Act" (EAJA), RCW 4.84.340-.360. Under RAP 18.l(a), a

party may recover attorney fees on appeal if authorized by applicable law.

       Under the EAJA, "a court shall award a qualified party that prevails in a judicial

review of an agency action fees and other expenses, including reasonable attorneys' fees,

unless the court finds that the agency action was substantially justified or that

circumstances make an award unjust." RCW 4.84.350(1). No challenge is raised to Mr.

                                               33
No. 33306-0-111
Arishi v. Wash. State Univ.


Arishi's status as a qualified party. But WSU argues that even if his appeal is successful

he has not yet prevailed, and, alternatively, that its position was substantially justified.

       Because RCW 4.84.350(1) provides that "[a] qualified party shall be considered to

have prevailed if the qualified party obtained relief on a significant issue that achieves

some benefit that the qualified party sought," a party can preyail for purposes of the

EAJA even where an administrative proceeding is remanded and the successful appellant

might not prevail on the ultimate merits. In Kettle Range Conservation Group. v.

Department ofNatural Resources, for example, an environmental organization was

deemed to be the prevailing party on a significant issue because the environmental review

that would continue following remand would be based on corrected sediment analysis

that could be materially more protective of the environment. 120 Wn. App. 434,469, 85

P.3d 894, 912 (2003). Similarly, in Alpine Lakes Protection Society v. Department of

Natural Resources, an environmental group was found to have prevailed on a significant

issue because it successfully challenged a mitigated determination of nonsignificance on

the basis that probable future forest practices must be considered by the agency, even

though the case was remanded for further fact-finding as to whether an environmental

impact statement would be required. 102 Wn. App. 1, 18-19, 979 P.2d 929 (1999). But

cf Ryan v. Dep 't of Soc. & Health Servs., 171 Wn. App. 454,476, 287 P.3d 629 (2012)

(relying on case law involving fee statutes other than the EAJA).




                                              34
No. 33306-0-111
Arishi v. Wash. State Univ.


       In this case, Mr. Arishi has established that he is entitled to a full adjudicative

hearing, a significant issue that achieves the benefit he sought. He has thereby prevailed

for purposes of the EAJA.

       The question that remains is whether WSU's action was substantially justified.

"Substantially justified" means justified to a degree that would satisfy a reasonable

person. Silver streak, Inc. v. Dep 't of Labor & Indus., 159 Wn.2d 868, 892, 154 P .3d 891

(2007). An action is substantially justified if it had a reasonable basis in law and in fact.

Raven v. Dep 't of Soc. & Health Servs., 177 Wn.2d 804, 832, 306 P.3d 920, 933-34

(2013 ). It need not be correct, only reasonable. Id. (citing Pierce v. Underwood, 487

U.S. 552, 566 n.2, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988)).

       We do not find WSU's action to have been substantially justified. Mr. Arishi

made a statute-based challenge and emphasized that he was not claiming to have been

denied due process. Yet WSU responded by focusing exclusively on case law involving

constitutional challenges. It never examined whether the AP A permits agencies to adopt

a hybrid process falling somewhere between brief and full adjudication-a process that

might meet constitutional muster, but is in disregard of the fact that the AP A does not

authorize agencies to "forego required formal adjudicatory proceedings on the grounds

that another system is alleged to be adequate." Seattle Bldg., 129 Wn.2d at 803. We

award Mr. Arishi reasonable attorney fees on appeal subject to his timely compliance

with RAP 18.l(d).

                                              35
No. 33306-0-III
Arishi v. Wash. State Univ.


                                        CONCLUSION

          We recognize that for institutions that have not conducted full adjudications in the

past, are subject to Title IX, and receive a complaint of sexual misconduct amounting to a

felony under criminal law, our decision will require them to develop the capacity to

conduct a timely full adjudication. We recognize this is not a simple matter, especially

for small institutions, but the issue and interests demand as much for students like Mr.

Arishi.

          We point out that many Washington agencies avoid some of the demands of

conducting full adjudications themselves by using, as the presiding officer, an

administrative law judge assigned by the office of administrative hearings in accordance

with chapter 34.12 RCW. In his 1989 article on the APA, Professor Andersen points out

that institutions of higher education obtained an exemption from the obligation to use

independent administrative law judges in 1988, an exemption whose wisdom he

questioned and that he hoped would be corrected. Andersen, supra, at 810 n.1 72, 817

n.220 (citing RCW 34.05.425(2)). Institutions of higher education might want to request

legislative reconsideration of that exemption, at least as it applies to disciplinary actions

that require full adjudication. If, working with colleges and universities, the office of

administrative hearings is able to conduct an adjudication in compliance with Title IX

requirements, it will relieve educational institutions of that burden and provide

independence that could be valuable in these difficult cases.

                                               36
No. 33306-0-111
Arishi v. Wash. State Univ.


       We reverse the superior court and the underlying agency order, award Mr. Arishi

reasonable attorney fees, and remand for a full adjudication.




WE CONCUR:




Pennell. J.




                                            37
No. 33306-0-Ill
Arishi v. Wash. State Univ.
Appendix


                                        APPENDIX

       Eight Washington institutions follow the "conference adjudication" approach of

the Model Act by limiting brief adjudication to categories of relatively inconsequential

sanctions. Three provide for brief adjudication in all student conduct proceedings, but

limit brief adjudication to appeals from those proceedings that involve a sanction no more

serious than a suspension of 10 instructional days. 9 One limits brief adjudication to

student conduct cases in which the proposed penalty is less than dismissal. 10 Another

provides that a student is entitled to a "formal" adjudication of any dismissal decision

upon request, and that the institution's vice-president can also choose to conduct a

"formal" hearing. 11 The state's largest institution of higher education, the University of

Washington, makes a "formal" adjudication available to students accused of hazing;

students subject to a recommended sanction of dismissal, suspension, or restitution in

excess of $300 dollars; and students accused of sexual misconduct in which any sanction

is imposed by the conduct officer to whom the allegation is initially referred. WAC 478-

120-100(3); 478-120-137(2).

       Five institutions have not adopted brief adjudication for any student conduct



       9
         WAC 132A-125-050(8) (Peninsula College); WAC 132J-126-280(1) (Green
River College); WAC 495D-121-360(9) (Lake Washington Institute of Technology).
       10
          WAC 132U-108-020(3) (Whatcom Community College).
       11
          WAC 495E-120-130(4) (Renton Technical College).

                                             38
No. 33306-0-111
Arishi v. Wash. State Univ.
Appendix


proceeding, yet appear from other regulations to conduct proceedings that fall short of the

requirements for full adjudication. 12 Evidently they have overlooked the requirement of

RCW 34.05.482(l)(c) that brief adjudication can be used only when the agency has

adopted that process by rule. (Many institutions also appear to have overlooked the

requirement ofRCW 34.05.250 that in adopting a rule of procedure that differs from the

chief administrative law judge's model rules, an agency shall include in the order of

adoption a finding, stating the reasons for the variance.)

       Twenty institutions, using what appears to be pattern language, adopt brief

adjudication for all student conduct proceedings and include no provision under which a

full adjudication will ever be available to a student. 13


       12
          Yakima Valley Community College, see Title 132P WAC; Walla Walla
Community College, see Title 132T WAC; Tacoma Community College, see Title 132V
WAC; South Puget Sound Community College, see WAC 132X-90-040 and Title 132X
WAC); and Evergreen State College (WAC 174-135-010; chapter 174-123 WAC).
       13
          WAC 106-08-050(3) (Central Washington University); WAC 132B-108-050(3)
(Grays Harbor College); WAC 132D-108-050(3) (Skagit Valley College); WAC 132E-
108-050(3) (Everett Community College); WAC 1320-108-050(3) (Shoreline
Community College); WAC 132H-108-450(3) (Bellevue Community College); WAC
132I-108-050(l)(b) (Highline College); WAC 132L-108-050(3) (Centralia College);
WAC 132M-108-020[(3)][(c)] (Lower Columbia College); WAC 132Q-108-050(3)
(Spokane Community College; Spokane Falls Community College); WAC 132R-02-
050(3) (Big Bend Community College); WAC 132S-01-050(3) (Columbia Basin
College); WAC 132W-09-050 (Wenatchee Valley College); WAC 132Y-108-050(3)
(Edmonds Community College); WAC 132Z-108-050(3) (Cascadia Community
College); WAC 495A-108-050(3) (Bates Technical College); WAC 495B-108-050(3)
(Bellingham Technical College); and WAC 495C-108-050(3) (Clover Park Technical
College), and see Title 516 WAC (Western Washington University).

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No. 33306-0-111
Arishi v. Wash. State Univ.
Appendix


       There are several outliers from these three common approaches, one being WSU,

with its adoption of brief adjudication for all student conduct matters, subject to review

and conversion to full adjudication after-the-fact. 14




       14
         Others are Pierce College, which adopts brief adjudication for review of tuition
and fee waivers and makes brief adjudication optional for a student facing a disciplinary
proceeding. WAC 132K-130-010(b); 132K-125-330. Clark College, Olympic College
and Seattle Community Colleges adopt brief adjudication for "[a]ppeals from actions
from student conduct or disciplinary hearings" but not the student conduct proceedings
themselves. WAC 132N-108-020(3); WAC 132C-120-102(8); WAC 132F-108-050(8).
Eastern Washington University permits students to apply for "formal" adjudication and
anomalously provides for brief adjudication "[w ]hen required by law or constitutional
right." WAC 172-108-040, -050.

                                              40
