394 P.3d 651
Ariz.2017Background
- Secretary of State found reasonable cause that Attorney General Thomas Horne, Kathleen Winn, and two campaign committees violated Arizona campaign finance laws and referred the matter to the Attorney General’s Office.
- Solicitor General appointed Sheila Polk as Special Arizona Attorney General; Polk investigated, issued a 25‑page compliance order requiring refunds (~$397,000) and amendments, and informed parties of a right to an APA hearing.
- Appellants requested an administrative hearing; an ALJ held a three‑day evidentiary hearing and recommended vacating Polk’s compliance order, finding Polk had not proved illegal coordination.
- Polk participated in prosecution preparations during the ALJ proceedings, then issued the final administrative decision rejecting parts of the ALJ’s legal conclusions and affirming her original order; superior court and court of appeals affirmed.
- The Arizona Supreme Court granted review on due process grounds, focusing on whether Polk’s combined roles as accuser/advocate and final decisionmaker violated the Fourteenth Amendment; the Court vacated the lower courts’ decisions and remanded for a neutral decisionmaker in the Attorney General’s Office.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process permits the same official to issue an initial enforcement order, participate in prosecution, and then render the final administrative decision | Horne: Combining those roles in Polk created an intolerable risk of bias and violated due process | Polk: Agencies may combine investigative, prosecutorial, and adjudicative functions; no actual bias shown; Comeau permits overlap | Held for Plaintiffs: Due process forbids an individual from serving as accuser/advocate and then the ultimate adjudicator when final agency review is deferential and the official materially participated in prosecution |
| Whether actual bias must be shown to establish a due process violation | Horne: Appearance and probability of unfairness suffice; actual bias not required | Polk: No showing of actual bias; Withrow tolerates some functional overlap absent proof of bias | Held for Plaintiffs: Actual bias not required; appearance/probability of unfairness from combined roles is enough to violate due process |
| Proper remedy where due process violation occurred (whether ALJ decision automatically became final) | Horne: ALJ decision should be reinstated as final administrative decision under §41‑1092.08(D) | Polk: Agency head acted within 30 days; ALJ decision does not automatically become final here | Held for Plaintiffs in part: Vacated agency’s final decision and remanded to a neutral decisionmaker in the current Attorney General’s Office for a new final administrative decision; did not reinstate ALJ decision |
| Whether prevailing party fees should be awarded now under §12‑348(A)(2) | Horne: Sought attorney fees as prevailing party on review of agency decision | Polk: Remand means no party has yet prevailed on the merits | Held for Polk: Fee award premature because no adjudication on the merits has yet occurred |
Key Cases Cited
- Withrow v. Larkin, 421 U.S. 35 (1975) (administrative agencies may investigate and adjudicate, but special facts can create intolerable risk of bias)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process test balancing private interest, risk of erroneous deprivation, and governmental interest)
- In re Murchison, 349 U.S. 133 (1955) (a judge may not act as accuser and then as adjudicator; appearance of fairness is required)
- Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) (unconstitutional potential for bias when the same person serves as accuser and later adjudicator)
- Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602 (1993) (due process may be satisfied when an initial enforcement actor’s determination is followed by de novo review by a neutral decisionmaker)