Kimball D. Christensen sought damages resulting from Samaritan Hospital's alleged wrongful discharge in violation of public policy, claiming his employment was terminated in consequence of his participation in union activities. Though today's majority holds as a matter of law Mr. Christensen cannot proceed with his suit, one thing is certain: no jury has heard testimony, examined witness demeanor, weighed credibility, or rendered a verdict one way or another as to the merits of Mr. Christensen's legal claim. Nor has any real court of law, acting through a real judge, determined his claim on its merits.
To the contrary, the majority denies Mr. Christensen his constitutional right to present his case to a jury of his peers *Page 322 because a lone executive branch officer for the Public Employment Relations Commission (PERC) believed the counterstory of the woman Mr. Christensen allegedly sexually harassed, Stephanie Hiatt, over Mr. Christensen's version of the facts. As a result, Mr. Christensen is left at the courthouse steps with no opportunity to present his case to an independent judiciary, much less a jury. Preclusion here epitomizes the intrinsic deficiencies of collateral estoppel where the asserted basis for preclusion is an administrative adjudication. I would protect Mr. Christensen's right to his day in court and strongly dissent from any contrary view.
I. Inviolate Means Inviolate
While the preclusion doctrines of res judicata and collateral estoppel promote judicial economy and finality, see Clark v.Baines, 150 Wn.2d 905, 913, 84 P.3d 245 (2004), important goals no doubt, we must remember neither doctrine is "intended to deny a litigant his day in court," Luisi Truck Lines, Inc. v. Wash.Utils. Transp. Comm'n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967). But application of collateral estoppel to administrative adjudications does, quite literally, "deny a litigant his day in court" because he never had one.
Moreover, I maintain the majority's conclusion is unsupported by a proper application of the test to determine whether to apply collateral estoppel. See infra part II. However I first lament the disturbing trend in our jurisprudence, namely vaulting inferior goals of judicial economy and finality over justice and constitutional guaranties. After all, what could be more economical and final than closing down the courthouse?
Paramount in our state is the right to trial by jury as part of an independent judiciary, which is expressly secured by our constitution without equivocation:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more *Page 323 jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
CONST. art. I, § 21 (emphasis added). The founders' use of the word "inviolate" suggests nothing less than an unwavering guaranty, as we so recognized 15 years ago: "For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guaranties." Sofiev. Fibreboard Corp., 112 Wn.2d 636, 656, 771 P.2d 711,780 P.2d 260 (1989). Furthermore "the essence of the right's scope" is the jury's province, duty, and ability to make factual determinations. Id. at 645.
Sofie withstood public support for curing "rising insurance premiums for liability coverage" by way of "tort reform," id. at 638, to uphold this fundamental constitutional right, striking down a statutory limitation on noneconomic damages available in a civil action, id. at 669. Yet despite Sofie's reluctance to permit the erosion of constitutional rights to serve public policy objectives, this court recently employed collateral estoppel to prevent two litigants from exercising their right to a jury. See Nielson v. Spanaway Gen. Med. Clinic, Inc.,135 Wn.2d 255, 956 P.2d 312 (1998). Nielson afforded preclusive effect to a federal judge's determination of damages despite the plaintiffs' lack of any opportunity to present their evidence to a jury. Id. at 269. Though Nielson prevented litigants from presenting their claim to a jury, at least they had the opportunity to present their claim to a federal judge in a bench trial. But here Mr. Christensen must settle for a nonjudicial ruling from an employee of the executive branch.
Despite Sofie's promise to rebuke any attempt to "diminish over time" the fundamental right to a jury, Sofie,112 Wn.2d at 656, application of collateral estoppel to administrative adjudications which subsequently deny a litigant his or her right to a jury is contrary to article I, section 21's constitutional guaranty. Reninger v. Department of Corrections, 134 Wn.2d 437,454, 951 P.2d 782 (1998), overturned a jury verdict by way of administrative collateral estoppel *Page 324 to deny two civil servants' claims of tortious interference with business expectancy. This holding was an unwarranted invasion of the jury's province to decide the merits of a litigant's factual allegations and a stark denial of access to an independent judiciary. But Reninger has been overruled sub silentio by subsequent enlightened decisions.14 See State v.Vasquez, 148 Wn.2d 303, 317-18, 59 P.3d 648 (2002) (discussedinfra).
As the right to a jury is so elementary in our jurisprudence, I posit a litigant's opportunity to present his or her case to that jury should not be denied unless he or she validly waives that right, see Godfrey v. Hartford Casualty Insurance Co.,142 Wn.2d 885, 898, 16 P.3d 617 (2001) ("waiver of the right to jury trial `must be voluntary, knowing, and intelligent'" (quotingCity of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984))), or the claim is appropriately precluded by a priorjudicial adjudication. This would not affect preclusion rightly afforded to summary judgments, consensual arbitral decisions, or bench trials where the litigant had validly waived the jury right. Such cases involve either a failure of the party against whom preclusion is sought to provide a genuine issue of fact for the jury to determine, a contractual waiver of his or her right to a jury, or an express desire to present a case to a judge rather than a jury.
Those cases, however, are markedly different from cases like the one at bar where the litigant proceeds to an administrative forum, not an independent judiciary. Despite the constitutional guaranty that all genuine factual disputes should be resolved by a jury, the majority asserts a litigant who, unknowing of the consequences, proceeds to the administrative tribunal is forever barred from asserting this right.
And the sword cuts both ways. In cases where the administrative claimant prevails, he or she may then seek *Page 325 to preclude the defending party from relitigating an issue before a jury. Such an scenario would cut off Samaritan Hospital's right to defend before a jury the merits of its decision to terminate Mr. Christensen's employment, as it was a party to the administrative PERC hearing at issue here. The defending party would have no choice whatsoever of who should be the factfinder yet is forced to accept the factual determination of one person as binding — a person who is not even a member of the judiciary. This result is facially contrary to the underlying principle of the jury system, not to mention an independent judiciary. As the Supreme Court has noted, "the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges." Duncan v. Louisiana,391 U.S. 145, 156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).15
While our constitution demands the right to have factual disputes be resolved by a jury of one's peers, the decision of a lone administrative hearing officer eviscerates the litigant's right to a jury. Such also undermines the necessary separation of the judicial and executive branches of government. As Dean Roscoe Pound put it:
There are those in our law schools today who advocate a complete fusion of legislative, executive, and judicial power in administrative boards and bureaus and agencies. Even without constitutional amendment authorizing this, administrative agencies are likely to achieve it in substance unless judicial scrutiny of their action can be preserved and made effective. . . .
Once established an absolute bureaucracy will not be easy to dethrone. Control of an omnicompetent administrative hierarchy, *Page 326 accountable only to an ultimate administrative head, will prove as effective a means of absolute government as was formerly control of an army.
ROSCOE POUND, The Rise of Administrative Justice, in ADMINISTRATIVE LAW: ITS GROWTH, PROCEDURE, AND SIGNIFICANCE 35-36 (1942) (emphasis added). The growth of administrative collateral estoppel has reached its critical mass. Either the right to a jury remains "inviolate" as the constitution so demands (article I, section 21), thereby preserving the right of access to justice in a court of law, or this fundamental constitutional guaranty is finished. I follow the constitution and choose the former.
II. Even Allowing Administrative Collateral Estoppel To Continue, Proper Application of Test Still Allows Mr. Christensen His Day In Court
Despite my continued reservations to acquiesce in administrative collateral estoppel when our constitution mandates factual disputes be reserved for the jury, I acknowledge our jurisprudence has permitted such preclusion on occasion. That said, however, the majority has diverted from a principled application of the inquiry used to determine whether to preclude relitigation of an issue. Were the majority to faithfully examine collateral estoppel in the present context, Mr. Christensen would not be left without any opportunity for judicial redress.
Washington follows a stringent four-pronged inquiry which requires affirmative answers to each of the following questions before raising the collateral estoppel flag:
Clark, 150 Wn.2d at 913. The burden to affirmatively prove each and every prong of this inquiry rests with the party *Page 327 seeking preclusion, and that party's failure to do so prevents application of the doctrine. McDaniels v. Carlson,108 Wn.2d 299, 303, 738 P.2d 254 (1987).(1) the issue decided in the prior adjudication is identical to the one presented in the current action, (2) the prior adjudication must have resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication, and (4) precluding relitigation of the issue will not work an injustice on the party against whom collateral estoppel is to be applied.
Here we do not confront the typical collateral estoppel scenario. Rather here the claimed basis for preclusion is an administrative adjudication, not a real "final judgment on the merits" by a court possessing both personal and subject matter jurisdiction. See RESTATEMENT (SECOND) OF JUDGMENTS §§ 1, 17 (1980). Nonetheless, that deficiency is per se not determinative, as our cases recognize collateral estoppel may still prevent relitigation of an issue decided by an administrative tribunal upon consideration of three additional criteria: "(1) whether the agency acting within its competence made a factual decision; (2) agency and court procedural differences; and (3) policy considerations." State v. Dupard, 93 Wn.2d 268, 275,609 P.2d 961 (1980). As "[p]olicy arguments have been often the deciding factor when collateral estoppel is based upon prior administrative determination," we flatly refuse to apply preclusion "when its application would contravene public policy."Id. at 275-76.
Utilizing the aforementioned criteria, I find three independent grounds to affirm the Court of Appeals' decision to allow Mr. Christensen his day in court: first, applying collateral estoppel here contravenes public policy; second, the procedural deficiencies of PERC hearings demand open access to the courts; and finally, such application works a patent injustice against litigants in Mr. Christensen's shoes. My reasons follow.
A. Contravening Public Policy
The legal basis for Mr. Christensen's cause of action is the tort of wrongful discharge in violation of public policy. We examined this tort extensively in Smith v. Bates TechnicalCollege, 139 Wn.2d 793, 804, 811, 991 P.2d 1135 (2000), holding an employee who is terminable only for cause may have a cause of action under the tort and that such employee does not have to exhaust his or her administrative *Page 328 remedies before an agency like PERC. In so doing we expressly recognized, "[I]n Washington the tort of wrongful discharge is not designed to protect an employee's purely private interest in his or her continued employment; rather, the tort operates to vindicate the public interest in prohibiting employers from acting in a manner contrary to fundamental public policy." Id. at 801 (emphasis added).
The majority correctly recognizes the more comprehensive16 doctrine of res judicata is not presently at issue. This is rightfully so, as PERC has no authority to adjudicate claims seeking damages for the tort of wrongful discharge in violation of public policy. Smith,139 Wn.2d at 811. But applying collateral estoppel here denies the damage claim before it can be asserted. This case allows collateral estoppel to wholly prevent any attempt to "vindicate thepublic interest" through a tort action. Id. at 801 (emphasis added). Yet the majority brushes aside its net effect by claiming the collateral estoppel only "implicates" public policy rather than "contravenes" it. Majority at 316 (emphasis omitted). I disagree. Erecting a preclusive barrier to a litigant's opportunity to litigate the merits of his or her wrongful discharge claim stands in direct opposition to the very essence of the public policy to "vindicate the public interest."Smith, 139 Wn.2d at 801 (emphasis added).
This view is supported by Dupard, the case where we first recognized the impropriety of collateral estoppel when the application thereof "contravene[s] public policy." Dupard,93 Wn.2d at 276. There we unanimously declined to afford preclusive effect to a parole revocation officer's administrative determination that the defendant was not guilty of possession of a controlled substance. Our decision was grounded in "[p]ractical public policy," which we determined to "require that new criminal matters, when charged in the criminal justice system, must be permitted *Page 329 to be there decided, unhampered by any parallel proceedings of the Board of Prison Terms and Paroles." Id. at 277. The majority avers public policy does not demand as much here due to the legislature's recognition of PERC's expertise. See majority at 315-16. However nothing in Dupard suggested the Board of Prison Terms and Paroles lacked expertise to determine whether Dupard had possessed cocaine or heroin, a condition precedent to revoking his parole. Cf. Dupard, 93 Wn.2d at 270-71. Nonetheless, we held criminal prosecutions should be decided in the courts rather than in the administrative tribunals. Given that "PERC does not have the authority to adjudicate wrongful discharge tort actions," Smith, 139 Wn.2d at 805, it logically follows from Dupard that no administrative determination should preclude that tort from being litigated in the only available forum: the court.
B. Procedural Differences
In addition, collateral estoppel must be rejected when there are procedural differences between the agency adjudication and its judicial corollary. Dupard, 93 Wn.2d at 275. Though this record demonstrates the PERC hearing itself resembled a trial by its use of counsel and evidentiary objections (notwithstanding the absence of those apparently inconsequential aspects of an independent judiciary and a jury, both of which are supposedly constitutionally preserved), one glaring deficiency of PERC hearings is more than enough to reject collateral estoppel here: the absence of any meaningful discovery.
By regulation:
The power of subpoena shall be limited to compelling the testimony of witnesses and production of documents or other tangible evidence at hearings conducted by the agency [PERC].
Pursuant to the authority delegated to the agency by RCW 34.05.446(2), other forms of discovery shall not be available in proceedings before the agency.
WAC 391-08-300 (emphasis added). PERC hearings — no matter how much they resemble a judicial proceeding *Page 330 during the actual hearing (again, pay no attention to the empty jury box and the executive officer sitting behind the bench) — are simply not on par with judicial actions. We have noted the "broad right of discovery is necessary to ensure access to the party seeking the discovery. It is common legal knowledge thatextensive discovery is necessary to effectively pursue either aplaintiff's claim or a defendant's defense." John Doe v. PugetSound Blood Ctr., 117 Wn.2d 772, 782, 819 P.2d 370 (1991) (emphasis added). Despite the necessity to do so to "effectively pursue" his claim, id., Mr. Christensen was by regulation forbidden from conducting depositions, CR 31, submitting interrogatories, CR 33, or requesting admissions, CR 36.
As a matter of law then, the procedural differences between PERC hearings and judicial actions demand rejection of collateral estoppel here.
C. Injustice
The majority asserts "there is nothing inherently unfair" about using collateral estoppel to deny Mr. Christensen the opportunity to present his case before a jury. Majority at 313. I strongly disagree. It is "unfair" to deny someone access to an independent judiciary based on the executive actions of a hearing examiner who is vested with limited jurisdiction and eschews the judicial and evidentiary norms of decision making.
Not once has any Washington court applied collateral estoppel to an administrative determination to bar a subsequent prosecution. See State v. Mullin-Coston, 152 Wn.2d 107, 120-21,95 P.3d 321 (2004); Vasquez, 148 Wn.2d at 318; State v.Williams, 132 Wn.2d 248, 257-58, 937 P.2d 1052 (1997); State v.Cleveland, 58 Wn. App. 634, 643-44, 794 P.2d 546 (1990).Williams is instructive. There we refused to apply an administrative determination that a mother had not acted willfully and knowingly made false statements to obtain welfare payments to collaterally estop the State from prosecuting the mother for welfare fraud. See Williams, 132 Wn.2d at 258. We grounded our decision on our refusal to *Page 331 force the State into a catch-22, where "the State most likely would consider forgoing administrative hearings even though such hearings allow it to recoup financial losses resulting from fraud." Id.
Logically resulting from Williams was Vasquez. There we refused to afford preclusive effect to an administrative license suspension hearing at which the hearing officer concluded the police lacked probable cause to initially detain Vasquez's vehicle. Vasquez, 148 Wn.2d at 307, 317. We "noted the `unfairness of permitting an adjudication in an informal administrative setting . . . to bar later criminal prosecutions.'" Id. at 309 (quoting Thompson v. Dep't ofLicensing, 138 Wn.2d 783, 796, 982 P.2d 601 (1999)). Accordingly, we declined to "forc[e] the State to fully litigate matters at the administrative level [which] would cause delays and deplete already scarce resources within the prosecutor's office." Id. at 317-18. Vasquez rebuked collateral estoppel and allowed factual issues to be determined by an independent judiciary, a result in counterdistinction to Reninger, thus leading me to conclude Reninger was no longer sound law. SeeVasquez, 148 Wn.2d at 318 (Sanders, J., concurring) ("conclud[ing] [Vasquez] . . . in effect overrules Reninger sub silentio").
Even assuming arguendo Vasquez and Reninger could be harmonized on the ground "the procedures in the administrative proceeding in Reninger were far more extensive" than those inVasquez, majority at 314 (citing Vasquez, 148 Wn.2d at 314 n. 9), Reninger based its view on the similarities between the administrative hearings before the Personnel Appeals Board (PAB) and the judicial action at issue. Reninger, 134 Wn.2d at 451. Yet similarities existent in Reninger such as discovery are simply not present here. Compare id. at 451 ("[Reninger and Cohen] conducted formal depositions under oath prior to the PAB hearing.") with WAC 391-08-300 (prohibiting any discovery outside of subpoenaing documents for the PERC hearing). Thus, while I reject the notion Vasquez and Reninger are consistent with each other, Mr. Christensen's case leans far more towardVasquez in any event. *Page 332
The majority attempts however to distinguish Mr. Christensen's case, asserting "this case does not present policy concerns that weighed heavily in cases like Vasquez and Williams, i.e., concerns relating to efficient allocation of limited state resources." Majority at 315. True, the State's budget is not relevant here. However the public policy of ensuring a public employee's unfettered opportunity to seek redress in the courts where no equivalent opportunity lies elsewhere is at issue. And I know of no legal principle that relegates that policy below the conservation of finite government assets. To conclude otherwise suggests civil servants seeking judicial redress are not worthy of open access to the courts whereas the prosecutor's office is.
While this court in Williams and Vasquez was loath to put the State between a rock and a hard place, such is precisely what this majority does to Mr. Christensen and other similarly situated public servants. Those persons who otherwise would seek reinstatement of their occupation of choice will now consider forgoing the administrative hearing before PERC in lieu of damages available in a wrongful discharge tort action, or vice versa. Such a catch-22 is not something collateral estoppel permits as it would "work an injustice on the party against whom collateral estoppel is to be applied." Clark, 150 Wn.2d at 913.
CONCLUSION I would affirm the Court of Appeals and allow Mr. Christensen his day in court before a jury of his peers. Such an opportunity in my view is not only constitutionally mandatory, but also outside the purview of collateral estoppel's reach. Because our majority denies Mr. Christensen this right, I dissent.
IRELAND and CHAMBERS, JJ., concur with SANDERS, J.