The Right to Present Evidence is Fundamental

Thomas A. Berry

The City of Bainbridge Island, Washington, enacted several burdensome zoning ordinances regulating property on its shoreline. A group of landowners on the island challenged those regulations as unlawful for several reasons, making claims under both state law and the U.S. Constitution. But Washington State’s procedural rules wouldn’t allow those landowners to bring their challenge directly in state trial court. Instead, they first had to bring their challenge before a state administrative board, even though that board didn’t have jurisdiction to rule on any of their federal constitutional claims.

After their state‐​law claims were rejected by the administrative board, the landowners were finally allowed to bring suit in a Washington State trial court. But that trial court held that they were limited to presenting the evidence that was already in the administrative record—a record compiled and finalized before they were allowed to actually present their constitutional claims. Even though the landowners had additional evidence going specifically to their constitutional challenges, and even though that evidence would have been admissible if they had been allowed to bring their challenge directly in state court, that evidence was excluded.

A Washington State appellate court affirmed this exclusion and the Washington State Supreme Court declined to review their case. Now the landowners are asking the U.S. Supreme Court to grant review. The Cato Institute has joined the Goldwater Institute to file an amicus brief urging the Supreme Court to take their case and reverse the exclusion of their evidence.

The Due Process Clause of the Fourteenth Amendment guarantees every litigant the right “to present his case and have its merits fairly judged.” Logan v. Zimmerman Brush Co. (1982). As the brief explains, this right must include the right to present evidence necessary to establish a constitutional claim. Even for facial constitutional claims, facts and expert testimony are often necessary to demonstrate standing, to determine whether a constitutional provision is implicated, and to establish the proper scope of review. Yet state rules of administrative procedure frequently trap litigants and deny this due process right by placing them in a Catch‐​22: constitutional claims can only be raised in court if the administrative process has been exhausted, but suits appealed from an administrative process can only rely on the administrative record.

Our brief urges the Court to end this trap and establish baseline standards for when a state must allow evidentiary supplementation of an administrative record. When a citizen’s rights are violated by the decisions of an agency, that person must have a genuine opportunity to present facts to a neutral decision‐​maker to show that the agency acted unconstitutionally. The Court should grant review and reaffirm that bedrock principle of due process.