Horne v. Polk (5/25/2017)

June 16, 2017

Arizona Supreme Court holds that the same person may not issue an initial administrative decision finding violations and ordering remedies, participate personally in the prosecution of the case, and then make a final agency decision.

The Secretary of State notified the Solicitor General that there was reasonable cause to believe that Attorney General Horne and others had violated campaign finance laws.  The Solicitor General appointed a Special Arizona Attorney General, Sheila Polk, to handle the case.  Polk investigated and issued a 25-page order finding violations, including illegal coordination.  Horne requested an administrative hearing.  After the hearing the ALJ found that Polk failed to prove illegal coordination and recommended that the compliance order be vacated.  Polk then issued a final administrative decision that affirmed her own compliance order.  She accepted the ALJ’s findings of fact but rejected part of the ALJ’s conclusions of law.

Horne appealed to the superior court, which affirmed.  At the court of appeals, it came out for the first time that Polk was personally involved with the prosecution of the case, by assisting with the preparation and strategy.  The court of appeals affirmed, finding no abuse of discretion and no showing of actual bias to support the claim of a due process right violation.  The Supreme Court granted review of the due process issue only, not addressing the underlying merits of the case.

The Supreme Court held that it is a violation of due process when the same person serves as an accuser, advocate, and final decisionmaker in an agency adjudication.  There is always a concern about due process when prosecutorial and adjudication functions are handled by the same agency.  This concern is magnified because agency determinations are given only deferential review by the courts. 

Applying the due process balancing test from Mathews v. Eldridge, the court found that the action here sought the repayment of substantial campaign contributions.  The right to a neutral adjudicator is a component of fair process and one cannot participate as a prosecutor and then decide the case.  Merely combining investigative, prosecutorial, and adjudicative functions in the same agency is not a violation.  An agency head that serves as the ultimate adjudicator should not also serve in an advocacy role in the agency proceedings although arms length supervision of such advocates by the head is acceptable.  Here, the Supreme Court remanded to the agency for a new final determination by a neutral decisionmaker.

Justice Bolick authored the unanimous opinion.  Justices Timmer, Gould, and Lopez recused themselves from the case.  Judges Eckerstrom, Howard, and Wright sat in their places.