(concurring in part, dissenting in part)—I concur in the affirmance of paragraphs 2, 5 and 6 of the tribunal's order. I join the majority's decision to sustain the affirmative solicitation requirement of paragraph 8. I concur in the remand of paragraph 3 of the tribunal's order only because this issue was not argued by the Commission on appeal. I also concur in the rejection of the cross appeal. I dissent from the majority's remand of paragraph 7 and the conclusion that the racial balance requirement in paragraph 8 is arbitrary and capricious. Regrettably, on those matters, my colleagues have improperly substituted their judgment for that of the tribunal.
*560The issue here is narrow. Goble and the Skolds unquestionably discriminated against potential black tenants contrary to the law and public policy of the State of Washington. The only dispute concerns the remedies ordered by the tribunal. The majority correctly states that the tribunal has broad discretion in fashioning remedies designed to effectuate the purpose of RCW 49.60, but the opinion ignores WAC 162-08-298(9) which provides in part:
The tribunal is not required to observe conventional common law or equity principles in fashioning its order. The guiding principle for the tribunal is whether a particular remedy will effectuate the purposes of the law against discrimination.
My colleagues, disregarding their own statement of the law and misapplying State ex rel. Gunstone v. State Highway Comm'n, 72 Wn.2d 673, 434 P.2d 734 (1967), substitute their view of public policy for that of the tribunal under the guise of remanding to consider alternative remedies and to correct arbitrariness. In my view these defects are not present in the tribunal's order. I would reverse the trial court and reinstate the tribunal's remedies.
Paragraph 7 Records of Inquiries
The majority remands the 3-year record-keeping requirement to consider alternative remedies because the order is of doubtful validity and unnecessarily burdensome. Gunstone, however, does not support a remand on these grounds. It authorizes a remand, where the reviewing court cannot say the agency was right because the record is insufficient to permit review. The majority relies on Gunstone's authorization of a remand to consider an alternate route. In Gunstone, the State Highway Commission rejected a shorter proposed route for a highway based on cost estimates by the State's engineers. The Supreme Court could not review those estimates because the record lacked an evidentiary basis for them. Without evidence to sustain the engineers' opinion, the record lacked any explanation of *561why the Commission rejected the shorter route. Here, however, the record contains a full explanation for the decision to impose record-keeping requirements. The tribunal made extensive findings concerning the Skolds' conduct and rejected less burdensome record keeping because of the seriousness of their offense. The tribunal stated in its written opinion:
In many cases, these requirements would be unduly burdensome. However, they are appropriate in the present case because of the nature of the offense and the fact that most of the information is already kept by the Skolds.
The real issue is whether the findings and resulting order are arbitrary and capricious. If my colleagues "doubt" the "validity" of the order they should address that issue under the proper test because we have an adequate record for review.
The majority's objection focuses on the requirement of maintaining records about oral inquiries. They fear unreasonable invasions of privacy and a deterrence of minority applicants. The order, however, does not require the Skolds to inquire about an applicant's race. It merely directs the maintenance of records about "apparent race." The record does not support the majority's speculative concern that the order may offend applicants and thwart the antidiscriminatory purpose of the law.
I find the remedy to be within the tribunal's administrative competence. The Skolds' conduct was sufficiently serious to sustain the tribunal's view that records of telephone and other oral inquiries are necessary to deter future discrimination.
The hearing tribunal's unchallenged findings state:
25. The testimony of Johnson, Jackson, Wood, Garvin, Davidson, Goble and the Skolds demonstrated a pattern and practice of discrimination in rental policies on the basis of race.
26. The racially discriminatory rental policies of the respondents was [sic] conscious and was [sic] an intentional violation of the Civil Rights Laws.
*56228. Both of the Black tenants residing in the apartments when the Skolds became owners have left. In five years of ownership, the Skolds have had 71 vacancies (a 300% turnover), and have rented to one Black at most. [The record reflects the Skolds rented to the one Black tenant after the complaint to the Commission.]
30. The various non-discriminatory explanations the Skolds suggested for their lack of Black tenants was unconvincing, totally incredible and unbelievable.
31. The respondents, Goble and Skolds, had a policy and practice of refusing to answer the manager's buzzer when rung by prospective Black tenants.
If only written applications were subject to record-keeping requirements, the Skolds could easily continue these discriminatory practices.
The need to eradicate the evil effects of prior discrimination and to prevent future discriminatory practices justifies the tribunal's use of record-keeping requirements. Louisiana v. United States, 380 U.S. 145, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965). The tribunal could have reasonably concluded that records of oral inquiries were necessary to monitor the Skolds' compliance, particularly where they unquestionably have maintained an intentional pattern or practice of excluding Blacks and have given the tribunal no reason to believe they will voluntarily terminate their wrongful conduct. See United States v. Jamestown Center-in-the-Grove Apartments, 557 F.2d 1079 (5th Cir. 1977); United States v. West Peachtree Tenth Corp., 437 F.2d 221, 13 A.L.R. Fed. 269 (5th Cir. 1971); United States v. Youritan Constr. Co., 370 F. Supp. 643 (N.D. Cal. 1973), modified as to other relief and aff'd, 509 F.2d 623 (9th Cir. 1975). It is of no concern to a reviewing court that alternative remedies might be more appropriate where, as here, there is a sufficient basis for the tribunal's order. Insurance Co. of N. America v. Kueckelhan, 70 Wn.2d 822, 425 P.2d 669 (1967); In re Case E-368, 65 Wn.2d 22, 395 P.2d 503 (1964) (cited by majority as Arnett v. Seattle Gen. Hosp.).
*563Paragraph 8 Racial Balance
The majority strikes a portion of paragraph 8 that requires the Skold Apartments to attain a racial composition that reflects the surrounding community. My colleagues rely on a supposed lack of authority for this remedy, but ignore the tribunal's broad authority to fashion affirmative relief, WAC 162-08-298(4)(q), and its authority to order any remedy available under comparable civil rights laws of the United States or other states, WAC 162-08-298(4)(r). As stated in the last paragraph of the list of possible remedies in WAC 162-08-298:
This list is not exhaustive. A tribunal may make any order that will effectuate the purposes of the law against discrimination, that is in compliance with the rules of the commission, and that is not otherwise prohibited by law.
(Italics mine.) The majority, therefore, must demonstrate that this remedy "is not otherwise prohibited by law." Under the Commission's regulations, nothing is proved by my colleagues' reliance on a lack of authority.
The majority also finds no support for the tribunal's selection of a large surrounding area as the relevant community. In today's mobile society, however, the area chosen by the tribunal is more reasonable than the majority's convenient selection of small nearby census tracts with small black populations. The finding that about half of the inquiries concerning vacancies were from Blacks is undisputed by the Skolds and further supports a conclusion that applicants were drawn from a greater area than the predominantly white nearby census tracts.
The majority disapproves of the supposedly vague racial balance goals. My colleagues analyze this issue without quoting or discussing the last portion of the order in paragraph 8.
The Commission may, at any time after one (1) year but not later than three (3) years following entry of the tribunal's final Order, file objections that the respondents have failed to comply with this paragraph. The hearing *564tribunal shall retain jurisdiction of this cause in order to conduct a hearing .with respect to such objections, if a hearing is deemed necessary.
This provision, coupled with the record-keeping requirements, demonstrates that the tribunal imposed no racial balance goals and that the proper measure of an adequate racial composition will turn on future events, including the percentage of black applicants.11 The order contemplates a cooperative effort by the Commission and the Skolds to achieve a reasonable racial balance in the apartment building. It is not the judiciary's role to intervene at the implementation stage and require the tribunal to set a more precise goal. The tribunal has the discretion to delegate to the Commission the duty to monitor the Skolds' conduct. If the Commission is dissatisfied with the Skolds' efforts, it must request a hearing and, if necessary, seek a racial balance goal. This flexibility is commendable, not arbitrary and capricious. The order provides further flexibility by avoiding a quota and excusing the Skolds from noncompliance if they show nondiscriminatory reasons for failing to achieve a representative racial composition.
This remedy is not arbitrary and capricious. The tribunal could reasonably conclude from the record that a racial balance requirement was essential to deter future discrimination. Even record-keeping requirements are not foolproof and can easily be violated when oral inquiries occur.12 With the Skolds' record of discrimination and their desire to continue their conduct, it was consistent with the Commission's regulations, and constitutional, to adopt a remedy available under comparable civil rights laws and impose a *565general and flexible goal designed to achieve racial balance in the apartment building. WAC 162-08-298(4) (r); see Maehren v. Seattle, 92 Wn.2d 480, 599 P.2d 1255 (1979); Lindsay v. Seattle, 86 Wn.2d 698, 548 P.2d 320, cert. denied, 429 U.S. 886, 50 L. Ed. 2d 167, 97 S. Ct. 237 (1976); EEOC v. Local 638, 565 F.2d 31 (2d Cir. 1977); United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 30 L. Ed. 2d 367, 92 S. Ct. 447 (1971); see also Fullilove v. Klutznick, 448 U.S. 448, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980). The tribunal, not this court, is the proper forum for determining the best means of effectuating public policy in this area. It is irrelevant that the majority prefers a different result.
The legislature decreed in RCW 49.60.010 that the practice of racial discrimination "threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state." The tribunal is vested with the authority to determine the means of eliminating the discrimination in this case, and this court should not substitute its judgment for that of the legislature and the tribunal. I would reverse the trial court and reinstate the order without requiring further proceedings.
Reconsideration denied July 21, 1981.
Review denied by Supreme Court September 25,1981.
This highlights the necessity of paragraph 7's record-keeping requirement.
There was evidence before the tribunal that after the filing of the complaints in this case, the Skolds installed a viewer in Mrs. Goble's apartment door for her personal safety. The viewer allows the manager to observe a person at the outer door of the building without opening the door. Previously, Mrs. Goble's refusal to respond to Blacks was noticeable because she had to open her apartment door. The tribunal could have inferred that there was a risk the new viewer might be used to continue this practice without anyone's knowledge.