Due Process and the Administrative Process

The American legal system is founded upon principles of due process. Due process means that a party has the right to receive notice of the claims against them and an opportunity to be heard in a meaningful manner and at a meaningful time. The Arizona Supreme Court recently clarified that a party to an administrative proceeding does not receive due process when the party investigating the alleged administrative violation participates substantively in the ultimate decision. See Horne v. Polk, 2017 WL 2289920 (Ariz. 2017).

Horne involved an administrative proceeding concerning allegations that the attorney general and a staff member violated Arizona campaign finance laws. The solicitor general appointed Shelia Polk as a special Arizona attorney general to investigate the allegations. Ms. Polk issued a 25 page compliance order finding that the attorney general and his staff member violated campaign finance laws. The attorney general requested an administrative hearing. After a three day evidentiary hearing, the administrative law judge issued a recommendation that Ms. Polk vacate her compliance order.

Instead of following the administrative law judge’s recommendation, Ms. Polk rejected the recommended conclusions of law and issued a final administrative decision affirming the compliance order.

The attorney general appealed and argued, among other things, that Ms. Polk’s participation in the process violated due process. The Court of Appeals rejected this claim holding that the attorney general made no showing of actual bias. In reversing the Court of Appeals decision, the Supreme Court recognized that “[t]he right to a neutral adjudicator has long been recognized as a component of a fair process.” Id. at ¶ 17. The Supreme Court held that a party cannot participate in a case as a prosecutor and then substantively decide the case as an adjudicator. The combination of the prosecutorial and adjudicative functions into a single official created an “intolerable risk of unfairness.” Id. at ¶ 20. The Supreme Court summarized its holding:

We hold that due process does not allow the same person to serve as an accuser, advocate, and final decisionmaker in an agency adjudication. This holding should not unnecessarily impede the efficient and effective functioning of administrative agencies. As noted, in most instances, agencies are free under Arizona law to generate their own processes regarding initiation, investigation, and prosecution of charges or complaints. The agency head may supervise personnel involved in such functions; but if she makes the final agency decision, she must be isolated from advocacy functions and strategic prosecutorial decisionmaking and must supervise personnel involved in those functions in an arms-length fashion.

Id. at ¶ 27.

In summary, the Supreme Court recognized the obvious – a party cannot be the judge at its own trial. The Supreme Court left administrative agencies to create appropriate safeguards to protect the integrity of the administrative process.