The due process clause of the 14th Amendment to the U.S. Constitution does not allow "the same person to serve as an accuser, advocate, and final decisionmaker in agency adjudication," the Arizona Supreme Court has ruled in Horne v. Polk. This decision will require all state and local administrative agencies to review their administrative appeal processes to ensure they are in compliance with the due process requirements of the U.S. Constitution.

The court's decision focuses on an administrative proceeding emanating from a 2013 determination that former Arizona Attorney General Tom Horne and Kathleen Winn, his Community Outreach Director, along with two campaign committees (together, the appellants) violated Arizona campaign finance laws. Consistent with the applicable procedures, the Secretary of State had notified the Attorney General's Office of the violation, which, to avoid any appearance of impropriety, then referred the matter to Yavapai County Attorney Sheila Polk. After an investigation, Ms. Polk issued an order finding that the appellants had violated campaign finance laws. The appellants then requested an administrative proceeding to review Ms. Polk's findings. At the close of that hearing, the administrative law judge (ALJ) disagreed with Ms. Polk's determination and recommended that she vacate her order. Ms. Polk rejected the ALJ's recommendation and affirmed her prior compliance order.

After Ms. Polk rendered her decision, the appellants sought review by the Maricopa County Superior Court. Applying a deferential standard of review, the court upheld Ms. Polk's decision, finding that substantial evidence supported it. The appellants then sought additional review by the Arizona Court of Appeals. During that briefing, Ms. Polk revealed that she had been involved with the "prosecution of the case, by assisting with the preparation and strategy." Based on this information, the appellants argued that they had been deprived of their due process rights. Notwithstanding this revelation, the court of appeals affirmed the trial court's earlier decision.

The Arizona Supreme Court accepted review of the case only on the issue of whether the appellants' due process rights had been violated. At the outset of its analysis, the court noted that "[c]ombining prosecutorial and adjudicative functions in the same agency official gives rise to due process concerns." After reviewing the guiding principles for due process in administrative proceedings, the court emphasized that in the context of this case, "where the government seeks repayment of substantial campaign contributions that the private parties contend were legal (and, indeed, constitutionally protected), due process requires a neutral decisionmaker." And, noting the unique posture of the case, the court stated that "in the context of a regulatory agency adjudication, a process that involves the same official as both an advocate and the ultimate administrative decisionmaker creates an appearance of potential bias."

After conducting a thorough review of precedent from both the U.S. Supreme Court and other states, the court determined that "the combination of prosecutorial and adjudicative functions not just in a single agency but in the same official presents 'special facts and circumstances' creating an intolerable risk of unfairness." The court found particularly troubling that Ms. Polk "had a direct, personal role in the [appellants'] prosecution . . . ." In light of these considerations, the court held that "due process does not allow the same person to serve as an accuser, advocate, and final decisionmaker in an agency adjudication." In reaching that decision, however, the court clarified that "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 decision making and must supervise personnel involved in those functions in an arms-length fashion."

The upshot of the court's decision is that the U.S. Constitution guarantees the right to have a neutral decisionmaker in administrative proceedings. And, although an agency may perform accusatory, advocacy, and decision-making functions, the same person may not occupy those roles without raising serious constitutional concerns. It is not clear to what extent the court's decision will impact other administrative proceedings. Most state and local agencies separate the advocacy portion of the case from the final decision maker. But this may not always be the case so all administrative agencies would be well advised to review their policies and practices in light of the Horne v. Polk decision.

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