Thomas HORNE, individually and Thomas Horne for Attorney General Committee (SOS Filer ID 2010 00003); Kathleen Winn, individually, and Business Leaders of Arizona (SOS Filer ID 2010 00375), Plaintiffs/Appellants, v. Sheila Sullivan POLK, Yavapai County Attorney, Defendant/Appellee.
No. CV-16-0052-PR
Supreme Court of Arizona.
Filed May 25, 2017
242 Ariz. 226 | 394 P.3d 651
¶23 Although the fact that the encounter occurred in a dangerous neighborhood does not by itself authorize police to pat down people they encounter during an investigation, it is not irrelevant in determining whether an individual suspect is involved in criminal activity and armed and dangerous. In Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court sustained a frisk by police officers who were patrolling an area known for heavy narcotics trafficking where the defendant fled upon seeing the officers. The Court held that “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis,” but observed that “[a]n individual‘s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Id. at 124, 120 S.Ct. 673.
¶24 In Wardlow, ample suspicion that the defendant was engaged in criminal activity and was armed and dangerous arose not only from his presence in a high-crime area, but also “his unprovoked flight upon noticing the police.” Id. By contrast, here the question is whether reasonable suspicion justified frisking Primous not because of anything he did or said but because someone else with whom he was conversing fled when police approached, while Primous remained seated and cooperative. The fact that the encounter occurred in a high-crime neighborhood was insufficient to justify the search of an individual who gave no indication that he was involved in a crime or posed an imminent threat to the officers. The Fourth Amendment shields such individuals from pat-downs regardless of their neighborhood. This rule amply protects law-abiding residents of high-crime neighborhoods from being searched solely because of their surroundings.
B. Motion to Suppress
¶25 The State also argues that the marijuana baggie illegally seized from Primous should not be suppressed as evidence because there would be no deterrent value given that police officers will take whatever steps they deem necessary to protect their safety. See, e.g., Ybarra, 444 U.S. at 108, 100 S.Ct. 338 (Rehnquist, J., dissenting) (observing that excluding evidence will have little deterrent effect where frisk is based “on an officer‘s well-honed sense of self-preservation“). We find the argument unpersuasive. Suppressing the illegally seized evidence here helps ensure that frisks are based upon the legitimate factors outlined above and do not devolve into a de facto policy of frisking all individuals with whom police have investigative encounters in high-crime neighborhoods. Cf. Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (exclusionary law serves to deter “recurring or systemic” negligence). “While we understand the need for police officers to protect themselves in the course of their duties, we must balance that weighty interest against the ‘inestimable right’ of citizens to be free from unreasonable governmental searches and seizures.” Serna, 235 Ariz. at 276 ¶ 28, 331 P.3d at 411 (citing Terry, 392 U.S. at 8-9, 88 S.Ct. 1868).
III. CONCLUSION
¶26 Because the sole evidence supporting Primous‘s conviction was the product of an illegal search, we vacate the court of appeals’ opinion and reverse Primous‘s conviction and probationary term.
Dennis I. Wilenchik (argued), Wilenchik & Bartness, P.C., Phoenix, Attorneys for Thomas Horne and Tom Horne for Attorney General Committee; Timothy A. La Sota (argued), Timothy A. La Sota, PLC, Phoenix, Attorneys for Kathleen Winn and Business Leaders of Arizona
Sheila Sullivan Polk, Yavapai County Attorney, Benjamin D. Kreutzberg (argued), Deputy County Attorney, Prescott, Attorneys for Sheila Sullivan Polk
Dominic E. Draye, Solicitor General, Jennifer M. Perkins, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Solicitor General
Paul V. Avelar, Timothy D. Keller, Keith E. Diggs, Institute for Justice, Tempe, Attorneys for Amicus Curiae Institute for Justice
JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE BRUTINEL, and JUDGES ECKERSTROM, HOWARD, and WRIGHT joined.*
* Justices Ann A. Scott Timmer, Andrew W. Gould, and John R. Lopez IV have recused themselves from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Peter J. Eckerstrom, Chief Judge of the Arizona Court of Appeals, Division Two, the Honorable Joseph W. Howard, Judge of the Arizona Court of Appeals, Division Two, and the Honorable Timothy M. Wright, Judge of the Gila County Superior Court, were designated to sit in this matter.
¶1 In this case involving substantial consequences for alleged violations of campaign finance laws, we hold that due process does not permit the same individual to issue the initial decision finding violations and ordering remedies, participate personally in the prosecution of the case before an administrative law judge (“ALJ“), and then make the final agency decision that will receive only deferential judicial review.
I. BACKGROUND
¶2 On June 27, 2013, acting pursuant to
¶3 Following investigation, pursuant to
¶4 Appellants requested an administrative hearing pursuant to
¶5 Pursuant to
¶6 Appellants appealed to the Maricopa County Superior Court, challenging Polk‘s decision and the constitutionality of Arizona‘s campaign contribution limits. Neither side requested an evidentiary hearing. The court affirmed Polk‘s decision, finding that substantial evidence supported it and rejecting challenges to the statutory scheme.
¶7 Appellants appealed to the court of appeals. Polk‘s answering brief acknowledged a fact previously unknown to Appellants: “Admittedly, the Yavapai County Attorney was involved with the prosecution of the case, by assisting with the preparation and strategy.” Appellants argued that Polk‘s role as advocate and adjudicator violated their due process rights.
¶8 The court of appeals affirmed the superior court, concluding that “[b]ecause there was evidence in the record supporting Polk‘s finding that Horne and Winn coordinated . . ., we find no abuse of discretion.” Horne v. Polk, 1 CA-CV 14-0837, at *5 ¶ 12, 2016 WL 706376 (Ariz. App. Feb. 23, 2016). The court rejected Appellants’ due process claim, relying on Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 108 ¶ 26, 993 P.2d 1066, 1072 (App. 1999) (“An agency is permitted to combine some functions of investigation, prosecution, and adjudication unless actual bias or partiality is shown.“). Horne, 1 CA-CV 14-0837, at *5-6 ¶ 13. The court concluded, “In this case, appellants make no showing of actual bias. Accordingly, their due process rights were not violated.” Id. at *6 ¶ 13.
¶9 We granted review of the due process issue, which is of statewide importance and likely to recur. We have jurisdiction under
II. DISCUSSION
A. Statutory Scheme
¶10 Arizona‘s Administrative Procedure Act (“APA“), title 41, chapter 6, is generally silent about how agency charges or complaints are initiated. In the context of campaign finance violations,
¶11 Section
¶12 Ordinarily, nothing in the APA would necessitate having an agency head make both
¶13 An aggrieved party may appeal an adverse agency decision to the superior court, but the court‘s review is deferential. Section
B. Due Process
¶14 Combining prosecutorial and adjudicative functions in the same agency official gives rise to due process concerns. A single agency may investigate, prosecute, and adjudicate cases, and an agency head may generally supervise agency staff who are involved in those functions. See, e.g., Withrow v. Larkin, 421 U.S. 35, 53, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (“administrative agency [can] investigate facts, institute proceedings, and then make the necessary adjudications“). However, where an agency head makes an initial determination of a legal violation, participates materially in prosecuting the case, and makes the final agency decision, the combination of functions in a single official violates an individual‘s Fourteenth Amendment due process right to a neutral adjudication in appearance and reality. That due process violation is magnified where the agency‘s final determination is subject only to deferential review.2
¶15 The general parameters for due process are set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). There, the United States Supreme Court held that the constitutional sufficiency of administrative procedures is determined by three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
¶16 In this context, 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. Although Appellants have not alleged actual bias, once an official determines that a legal violation has occurred, that official can be expected to develop a will to
¶17 The right to a neutral adjudicator has long been recognized as a component of a fair process. One cannot both participate in a case (for instance, as a prosecutor) and then decide the case. Blackstone observed that a judge must not rule in a cause in which he is a party, “because it is unreasonable that any man should determine his own quarrel.” Am. Gen. Ins. Co. v. Fed. Trade Comm‘n, 589 F.2d 462, 463 (9th Cir. 1979) (quoting Blackstone, Commentaries on the Laws of England, I, 91). In In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955), the United States Supreme Court recognized the due process principle that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Murchison entailed a “one-man grand jury,” in which a judge acting as a grand jury charged two witnesses with perjury and then convicted them, which the Court held violated due process. Id. at 133-34, 75 S.Ct. 623. Because the judge was “part of the accusatory process,” he “cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.” Id. at 137, 75 S.Ct. 623. “Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” Id. at 136, 75 S.Ct. 623; accord Marshall v. Jerrico, Inc., 446 U.S. 238, 243, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (“[J]ustice must satisfy the appearance of justice, and this stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” (internal citation and quotation marks omitted)). The process was impermissibly tainted by the judge performing both prosecution and adjudication functions.
¶18 The Court in Withrow, 421 U.S. at 46, 95 S.Ct. 1456, applied those principles to the administrative context. There, a state licensing board notified a physician that it would commence an investigative proceeding to consider possible violations of his medical license. Id. at 37-39, 95 S.Ct. 1456. The physician challenged the board‘s combined investigatory and adjudicatory functions as a due process violation. Id. at 39, 95 S.Ct. 1456. The Court noted that although “situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,” the “contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden,” given “the presumption of honesty and integrity.” Id. at 47, 95 S.Ct. 1456.
¶19 The Court distinguished Murchison on the basis that there “the judge in effect became part of the prosecution and assumed an adversary position,” and observed that Murchison did not stand for the “broad rule that the members of an administrative agency may not investigate the facts, institute proceedings, and then make the necessary adjudications.” Id. at 53, 95 S.Ct. 1456. The Court noted that an “initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes,” thus the same agency may perform both functions. Id. at 58, 95 S.Ct. 1456. However, the Court cautioned, “[t]hat the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in
¶20 Here, 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 initial determination of a legal violation here was not akin to a judge finding probable cause to proceed to trial and then reaching a final decision after an adversarial process in which the judge was not an advocate. Rather, under the statutory scheme, the Secretary of State made the probable cause finding. Polk then commenced investigation and issued a lengthy decision finding a legal violation and ordering compliance, which would have been a final determination had Appellants not appealed. In the subsequent ALJ proceeding, Polk admittedly “was involved with the prosecution of the case, by assisting with the preparation and strategy.” Thereafter, she issued a final administrative determination affirming her prior order and rejecting most of the ALJ‘s conclusions of law. So we have here not only a single agency performing accusatory, advocacy, and adjudicatory functions, but the same individual performing all three functions. As Withrow characterized the circumstances in Murchison, “the judge in effect became part of the prosecution and assumed an adversary position.” Withrow, 421 U.S. at 53, 95 S.Ct. 1456. Beyond even that, Polk was in the position to affirm the very determination and order that she initially issued. See also id. (describing denial of due process where judge could rely on his own “[personal] knowledge and impression . . . that could not be tested by adequate cross-examination” (internal quotation marks omitted)).
¶21 Other decisions further inform our analysis. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993), pertains to pension plans, but its reasoning applies here. The federal statutory scheme entailed an adjudication of withdrawal liability by pension trustees, who have a fiduciary duty to the integrity of the pension plans, but the Court concluded that sufficient safeguards were present to ensure due process. Id. at 619-20, 113 S.Ct. 2264. The initial liability determination was made by the trustees, who “act only in an enforcement capacity,” id. at 619, 113 S.Ct. 2264, and whose decision was reviewed by a neutral arbitrator applying a preponderance of the evidence standard. Id. at 611, 113 S.Ct. 2264. “Where an initial determination is made by a party acting in an enforcement capacity,” the Court ruled, “due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review of all factual and legal issues.” Id. at 618, 113 S.Ct. 2264 (internal quotation marks omitted). By contrast, “[c]learly, if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised.” Withrow, 421 U.S. at 58, 95 S.Ct. 1456.
¶22 Here the initial determination was subject to de novo review by the ALJ, but the ALJ‘s determination was not final. Rather, the initial decisionmaker returned to make the final decision. “Even appeal and a trial de novo will not cure a failure to provide a neutral and detached adjudicator.” Concrete Pipe, 508 U.S. at 618, 113 S.Ct. 2264. The superior court review available from the final agency decision here falls far short of that.
¶23 More recently, in Williams v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 1899, 1908-09, 195 L.Ed.2d 132 (2016), the Court found a defendant‘s due process rights were violated when a prosecutor who approved the decision to seek the death penalty later served as a supreme court justice in a habeas petition arising from the same crime. “Of particular relevance to the instant case, the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.” Id. at 1905. Where “a prosecutor who participates in a major adversary decision” or “a judge has served as an advocate for the State in the very case the court is now asked to adjudicate,” a serious question arises concerning whether the adjudica- tor,
¶24 The reasoning of the Williams dissenters also supports our conclusion. Chief Justice Roberts distinguished the basis for the due process violation in Murchison, where “the judge (sitting as grand jury) accused the witnesses of contempt, and then (sitting as judge) presided over their trial on that charge.” Id. at 1913 (Roberts, C.J., dissenting). In Williams, by contrast, it was “abundantly clear” that the justice “had not made up his mind about either the contested evidence or the legal issues under review,” because he had not “previously made any decision with respect to that evidence in his role as prosecutor.” Id. at 1914. Likewise, Justice Thomas observed in Williams that “[b]roadly speaking, Murchison‘s rule constitutionalizes the early American statutes requiring disqualification when a single person acts as both counsel and judge in a single civil or criminal proceeding.” Id. at 1920 (Thomas, J., dissenting). He emphasized that a due process violation occurs only where the “same person . . . act[s] as counsel and adjudicator in the same case.” Id. at 1919 (highlighting the separation between the original decision to approve the request to seek the death penalty and the current civil proceeding regarding timeliness of a stay action). In this case, Polk made her views on the evidence and legal issues very clear in her initial twenty-five-page order, and she subsequently affirmed that very order in the same case after participating in the prosecution.
¶25 These cases instruct that the combination of accusatory, advocacy, and adjudicative roles in a single agency official violates due process. Other courts have followed that instruction. Synthesizing the cases as we have, the Iowa Supreme Court held in Botsko that the conduct of the civil rights commission‘s director in advocating on behalf of the complainant and then participating in the commission‘s closed adjudicatory proceeding violated due process. 774 N.W.2d at 849-50. Therein, the court articulated the applicable constitutional boundaries. Applying Withrow, it concluded that “there is no due process violation based solely upon the overlapping investigatory and adjudicatory roles of agency actors.” Id. at 849. “A more serious problem, however, is posed where the same person within an agency performs both prosecutorial and adjudicative roles.” Id.; see also Am. Gen., 589 F.2d at 464-65 (the order “is infected with invalidity” because a commissioner participated as counsel in earlier proceedings, even though that participation may have been “superficial rather than substantial“); Trans World Airlines, Inc. v. Civil Aeronautics Bd., 254 F.2d 90, 91 (D.C. Cir. 1958) (“The fundamental requirements of fairness . . . require at least that one who participates in a case on behalf of any party, whether actively or merely formally by being on pleadings or briefs, take no part in the decision of that case.“); Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81, 133 Cal.Rptr.2d 234, 248 (2003) (observing that combination of investigatory and adjudicatory functions is “fraught” with problems, especially where “these dual functions were not held by different sections of a single office, but by a single individual“).
¶26 Arizona jurisprudence is consistent with those authorities. In Comeau, 196 Ariz. at 108 ¶ 27, 993 P.2d at 1072, a doctor retained by the board investigated the complaint, then made statements and asked questions before the administrative panel, but “was not on the panel and did not participate in the discussion that preceded the panel‘s findings and recommendations.” In Rouse v. Scottsdale Unified School District No. 48, 156 Ariz. 369, 371, 752 P.2d 22, 24 (App. 1987), the court stated that “[t]he precise question in this case is whether simply joining investigative/prosecutorial and adjudicative functions results in a partial decision maker. We hold that it does not.” To the extent that these functions are combined in a single agency, we agree that the potential for bias is not intolerable; if they are performed by the same individual, they violate due process. Cf. Taylor v. Ariz. Law Enf. Merit Syst. Council, 152 Ariz. 200, 206, 731 P.2d 95, 101 (App. 1986) (“A conflict of interest would clearly arise if the same assistant attorney
¶27 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. See, e.g., Lyness v. Pa. State Bd. of Med., 529 Pa. 535, 605 A.2d 1204, 1209, 1211 (1992) (“if more than one function is reposed in a single administrative entity, walls of division [must] be constructed which eliminate the threat or appearance of bias“; specifically, “placing the prosecutorial functions in a group of individuals, or entity, distinct from the Board which renders the ultimate adjudication“).
¶28 Although Appellants do not allege actual bias, the circumstances here deprived them of due process. Apparently unique in the context of Arizona administrative law, Arizona‘s campaign finance statute, when joined with the APA, place a single official in the position of making both an initial and final determination of legal violation, with no opportunity for de novo review by the trial court. A quasi-judicial proceeding “must be attended, not only with every element of fairness but with the very appearance of complete fairness.” Amos Treat & Co. v. Sec. & Exch. Comm‘n, 306 F.2d 260, 266-67 (D.C. Cir. 1962) (holding that a similar combination of functions violated the “basic requirement of due process“). Specifically, we hold that when Polk also assumed an advocacy role during the ALJ proceedings, the due process guarantee prohibited her from then serving as the final adjudicator.
III. REMEDY
¶29 Appellants argue that because there was no “valid” decision by the agency head within thirty days after the ALJ decision, we should reinstate the ALJ decision as the “final administrative decision” pursuant to
¶30 Rather, Appellants are entitled to a determination by a neutral decisionmaker. See Williams, 136 S.Ct. at 1910; Botsko, 774 N.W.2d at 853; Nightlife Partners, 133 Cal.Rptr.2d at 248-49. We therefore remand the matter to the current Attorney General‘s Office, which does not have a conflict, for a final administrative decision. We express no opinion on the merits of the case.
¶31 After filing their petition for review, Appellants submitted an amended request for attorney fees under
¶32 For the foregoing reasons, we vacate the decisions of the superior court and court of appeals, and remand the case to the Attorney General‘s Office for further proceedings consistent with this opinion.