Phillip B. v. Mike Faust and Arizona Department of Child Safety

ALJ Decision. Mr. B. worked as a caregiver at New Horizons, a group home housing male children. On the morning of June 23, 2018, Mr. B. and Mr. Lam L., another caregiver employed by New Horizons, were on duty at the group home when an alleged child-abuse incident occurred relating to G.C., a 13-year-old resident of the group home…

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Washington, DC (June 14, 2022) – Today, a three-judge panel of the Arizona Court of Appeals ordered the removal of New Civil Liberties Alliance client Phillip B.’s name from the Arizona Department of Child Safety (DCS) Central Registry of substantiated findings of child abuse. DCS’s then-Director had ‘deleted’ factual findings and credibility determinations made by an independent administrative law judge (ALJ) who took live testimony in the case. DCS thereby unjustly destroyed Phillip B.’s reputation and career. In a decision that vindicates Phillip B. (whose name has been redacted to preserve his anonymity under court rules), the Arizona Court of Appeals held: “Because [the DCS] Director’s Decision here does not meet the regulatory requirements for a substantiated finding, there is no legal authority for the Director to enter Phillip B.’s name into the Registry.”

NCLA, a nonpartisan, nonprofit civil rights group, challenged DCS’s decision in Phillip B. v. Arizona Department of Child Safety, et al. NCLA raised several statutory concerns with DCS’s handling of the case. NCLA also exposed several problems in the DCS process that merited review, including the low burden of proof DCS has to meet, the inability of defendants to cross-examine witnesses, and the DCS Director’s ability to reverse the independent ALJ’s findings and act as prosecutor, judge, and jury in deciding the fate of the accused. Former DCS Director Gregory McKay had ‘deleted’ the credibility findings of the independent ALJ, adopting his own agency’s unsupported and unproven version of events instead. NCLA believes these procedural defects deprived Phillip B. of due process of law in violation of the Arizona Constitution and the U.S. Constitution.

However, NCLA also asserted multiple legal errors by the DCS Director in substantiating the allegations against Phillip B. and entering his name on the Central Registry. Writing for the majority, Judge D. Steven Williams avoided the constitutional questions by deciding in Phillip B.’s favor on a central legal argument in the case pertaining to the definition of ‘substantiated finding.’ Specifically, the Arizona Court of Appeals held that DCS’s regulations do not allow the DCS Director to place Phillip B.’s name on the Registry, when, as established here, “an ALJ has not found probable cause at a hearing.” The Court ruled that “when a hearing is held, only if both conditions are met—(1) an ALJ’s finding of probable cause and (2) the Director’s acceptance of the ALJ’s finding of probable cause—is a finding ‘substantiated’ and entered into the Registry.” Neither of the two prerequisites was met here: the ALJ did not find probable cause and the Director did not accept the ALJ decision.

NCLA commends the Arizona Court of Appeals for clearing Phillip B.’s name and ruling that the administrative review system in place at DCS does not allow the agency head to unilaterally reject or modify the decisions of independent ALJs and then place a name on the Central Registry.

NCLA released the following statements:

“NCLA is thrilled that today’s decision from the Arizona Court of Appeals completely vindicates our client, Phillip B. The Department of Child Services should never have entered his name onto Arizona’s Central Registry for substantiated findings of child abuse in the first place.”
— Mark Chenoweth, President and General Counsel, NCLA

“The administrative law judge who heard live testimony from the witnesses in this matter deemed Phillip B. and the other adult witnesses credible and did not find probable cause that any abuse had occurred. The Director of DCS then decided to ‘delete’ the ALJ’s credibility finding and placed Phillip B.’s name on the Registry. As the Court of Appeals found today, that decision was unlawful, as DCS’s definition of a ‘substantiated finding’ does not include such unilateral action by the Director.”
— Harriet Hageman, Senior Litigation Counsel, NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (April 19, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief today in the Arizona Court of Appeals. The suit challenges the Maricopa County Superior Court’s decision to allow the Arizona Department of Child Safety (DCS) to overrule factual findings and credibility determinations made by an independent administrative law judge (ALJ). DCS’s unjust decision placed NCLA client Phillip B. (whose name has been redacted to preserve his anonymity under court rules)on the DCS Central Registry of child abusers for 25 years, destroying his reputation and career.

After taking live testimony, the ALJ did not find probable cause to support the accusations of alleged child abuse against Mr. B. But state law allowed DCS to appeal the ALJ’s decision to its own Director, who in July 2019, disregarded due process and rejected the findings of the ALJ, adopting his own agency’s unsupported and unproven version of events. Acting as prosecutor, judge, and jury, then-director of DCS, Greg McKay, decided unilaterally that the charges against Mr. B. were ‘substantiated.’

For 27 years, Phillip B. has been a coach, school teacher, and group-home caregiver for troubled teens. In 2018, Mr. B. was falsely accused of child abuse by one of the teens in a group home. After a two-day trial, the ALJ found that Mr. B. committed no abuse when he placed his hand on the upset teenager’s shoulder to calm him down.

Director McKay rewrote the ALJ’s facts and applied an unconstitutional standard of proof that deviated from DCS’s own regulations. Additionally, Director McKay carried out his own decision without waiting for the court process to commence, much less conclude. DCS thus placed Mr. B.’s name on the Central Registry while he was still pursuing his state court appeals. NCLA argues that DCS’s review process violates the statute, federal due process, and the Arizona Constitution’s due-process and separation-of-powers clauses. The Court should reverse and vacate the DCS Director’s and the Superior Court’s decisions, and follow the initial conclusion of the neutral ALJ, who deemed the allegations against Mr. B. baseless. In addition, the Court of Appeals should require DCS to accord due process before placing anyone’s name in the Central Registry in the future.

NCLA released the following statement:

“DCS made the unbelievable statement that it can achieve its mission of protecting children only if no state court interferes with DCS’s antics. But when an agency is bent on disregarding due process, meaningful judicial oversight is sorely needed.”
— Adi Dynar, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (December 29, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit, civil rights group has appealed the decision of a Maricopa County Superior Court judge in the case of Phillip B. v. Mike Faust and Arizona Department of Child Safety to the Arizona Court of Appeals, Division One. NCLA contends the administrative review system in place at the Arizona Department of Child Safety (DCS), which allows the agency’s head to reject or modify the decisions of independent ALJs, is unconstitutional. NCLA further argues that in reviewing those actions the Superior Court must not defer to the DCS Director’s factual or legal findings and should instead uphold the ALJ’s decision or else provide the accused a new trial using a clear-and-convincing evidence (or at least preponderance of the evidence) standard of proof.

In the case of NCLA client Phillip B., the DCS Director “deleted” facts the Administrative Law Judge had found based on sworn, live testimony and cross-examination. Instead, the Director substituted his own one-sided “facts” based on unsworn interviews and hearsay. Such power to rewrite the administrative record ought to be unconstitutional.

In its appeal, NCLA argues that DCS’s low standard of proof (probable cause) and lenient standard of administrative record review (substantial evidence) deprived Phillip B. of due process of law under the Arizona and U.S. constitutions. In this case, an independent ALJ heard all the evidence and concluded that probable cause did not exist to show that Mr. B. abused a troubled teen in his care at a group home. But state law allowed DCS to appeal the decision to its own director, who then ruled in favor of his own agency, rejecting the neutral ALJ’s factual findings and credibility assessments. As a result, Mr. B.’s name, which has been redacted here to preserve his anonymity, has been placed on the Arizona Department of Child Safety Central Registry for 25 years—a decision that cost him his job and prevents him from working in most or all jobs working with youth.

ALJs in the AZ Office of Administrative Hearings follow rules of evidence and civil procedure that are designed to protect all litigants’ due process rights. Witnesses testify in person under oath and are cross-examined in an ALJ’s presence. ALJs weigh all the testimony presented to them and make factual and credibility findings. But the Superior Court’s ruling empowers agency heads to ignore rules of evidence and civil procedure and overturn the factual findings of ALJs. In addition to denying due process to the accused, this flawed procedure also violates the Arizona Constitution’s separation-of-powers doctrine. Agencies should not be allowed to investigate and prosecute Arizonans, and then act as the judge and jury in administrative cases. The Court should reverse the decision and order Mr. B’s name to be removed from the Central Registry.

NCLA released the following statement: 

“As the neutral factfinder found, no probable cause supports this allegation against Phillip B. DCS’s haste in adding people to the Central Registry has laid waste to some of Arizonans’ most cherished constitutional protections. Even, or perhaps especially, when child abuse allegations are involved, due process dictates DCS and the courts must assume people are innocent until proven otherwise.”

— Adi Dynar, Litigation Counsel, NCLA 

For more information about this case visit here. Watch case video here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (September 9, 2020) – In a disappointing turn of events, a Maricopa County Superior Court judge today affirmed the decision of the director of the Arizona Department of Child Safety (DCS) concerning an unproven child-abuse allegation in the case Phillip B. v. Mike Faust and Arizona Department of Child Safety.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents Mr. Phillip B., whose name has been redacted to preserve his anonymity under court rules. Mr. B. is an educator with decades of experience and an untarnished reputation, that is, until he was falsely accused by a teen in his care.

NCLA exposed several constitutional problems in the DCS process that deprived Mr. B. of liberty without due process of law under the U.S. and Arizona Constitutions as well as the separation-of-powers doctrine under the Arizona Constitution.

But in his order, Judge Douglas Gerlach said today that he will not decide the constitutionality of the administrative review scheme that the legislature put in place. One of the most dubious provisions is the ability of agency heads to reject or modify the decisions of ALJs. Independent ALJ decisions that respect due process and rules of evidence can be overturned by biased agency heads who ignore rules of civil procedure and evidence. This practice violates the due process rights of defendants.

In Mr. B’s case, the ALJ from the Office of Administrative Hearings, which is independent of DCS, concluded that probable cause did not exist to support a finding of abuse and cleared him of the charge. Despite the ALJ’s conclusion, state law allowed DCS to appeal the decision to its own director. Unsurprisingly, the director ruled in favor of his agency, rejecting the ALJ’s factual and credibility assessments and ordering that Mr. B’s name be placed on the Arizona Department of Child Safety Central Registry of child abusers for 25 years.

Unfortunately, the court today also refused to meaningfully review the constitutionality of Arizona’s administrative review scheme. In effect, the judge refused to clean up the due process mess that is DCS’s Central Registry, leaving the cleanup either to the legislature or to the Court of Appeals.

NCLA is fighting to right this wrong. Just last month, the Arizona Supreme Court adopted verbatim an NCLA-drafted amendment to its Judicial Review of Administrative Decisions Rule 3 (“JRAD Rule 3”). The new rule, which goes into effect starting January 1, 2021, affects all appeals from the final decisions of all Arizona state agencies that are required to go to the Superior Court—including DCS.

NCLA, on behalf of Mr. Phillip B., will appeal today’s decision to the Arizona Court of Appeals, Division One.

NCLA released the following statement: 

“The court’s decision is doubly disappointing. The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons. At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”

— Adi Dynar, Litigation Counsel, NCLA 

Read more case background here. Watch case video here.  

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (July 11, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, released a video today featuring the case of Phillip B. v. Mike Faust and Arizona Department of Child Safety. The video highlights the plight of NCLA client Phillip B. (whose name has been redacted to preserve his anonymity under court rules), who is challenging the decision of the Arizona Department of Child Safety (DCS) to place his name on the Central Registry of child abusers before he had exhausted state-court appeals. Mr. B., an educator with decades of experience and an untarnished reputation, worked with troubled youth placed in group homes until 2018 when he was falsely accused by a teen in his care.

Even after an independent administrative law judge (ALJ) from the Office of Administrative Hearings cleared him of the charge, finding no probable cause, then-DCS Director Gregory McKay took matters into his own hands. Director McKay rejected the ALJ’s factual findings and credibility assessments and ordered that Mr. B.’s name be placed on the Central Registry for 25 years.

The video brings to light numerous aspects of the administrative review process at DCS that are ruining the lives of innocent people in Arizona like Mr. B. by depriving them of due process of law under the Arizona and United States Constitutions.

Mr. B. has appealed to the Superior Court in Maricopa County to clear his good name. The Honorable Douglas Gerlach will hear oral argument from the attorneys via audio conference on July 14, 2020, at 9:30 am Arizona Time.

Excerpts from the video:

“Phillip B.’s case is one example of a larger problem at DCS and at state agencies across Arizona. A penalty as severe as this should be decided by a court of law. The New Civil Liberties Alliance is fighting this case because every American has a right to a full and fair hearing. That is not what happened in this case. We need to right that wrong.”

– Adi Dynar, NCLA Litigation Counsel

“I have my bachelor’s in criminal justice. I respect the rights of others, the judicial system. But I didn’t feel due process was done here. Everything that I’ve worked for is at stake right now.”

– Phillip B., NCLA client

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (April 15, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief today in Maricopa County Superior Court on behalf of client Phillip B.  NCLA’s brief exposes inherent problems with DCS’s (Arizona Department of Child Safety) unconstitutional administrative-review scheme, which violates due process by stacking the deck in the agency’s favor.

Mr. B. (whose name has been redacted to preserve his anonymity under court rules) had an untarnished reputation working with troubled youth until 2018 when he found himself falsely accused of child abuse by one of the teens in his care. According to the record, Mr. B. “placed his hand on the boy’s shoulder and admonished him to calm down” after the troubled teen became distressed. An administrative law judge (ALJ) from the Office of Administrative Hearings, which is independent of DCS, heard eyewitness testimony and made credibility determinations. She then concluded that probable cause did not exist to support a finding of abuse and cleared Phillip B. of the charge.

Despite the ALJ’s conclusion, state law allowed DCS to appeal the decision to its own Director, who rejected both the ALJ’s factual and credibility assessments. The Director substituted his own judgment in place of the independent ALJ’s based on third-hand testimony, which was thoroughly impeached during the trial. Based on this contrived record, the Director then ordered that Mr. B.’s name be placed on the Arizona Department of Child Safety Central Registry of child abusers for 25 years. He is appealing to the state trial court to clear his good name.

NCLA is challenging the following aspects of Arizona’s administrative process, each and all of which deprive Mr. B. of liberty and property without due process of law under the U.S. Constitution and Arizona Constitution or violate the state constitution’s separation-of-powers doctrine.

• Both the state and federal constitutions mandate the use of a standard of proof at trial that is higher than probable cause. DCS, however, uses that impermissibly low standard to place people’s names on the Central Registry.
• While the ALJ conducts the trial using well-established Rules of Evidence and Civil Procedure, there are important exceptions under the OAH procedure, including permitting the admission of “hearsay” statements by children and allowing the “reporting source” or the DCS caseworker who creates the initial report to avoid testifying and being subject to cross-examination.
• Whenever the DCS is dissatisfied with the ALJ’s decision, it can appeal to its own Director, who then acts as a judge in DCS’s own case.
• The DCS Director, without personally observing witnesses testify, and who operates without following the rules of evidence and civil procedure, is allowed to reject or modify the ALJ’s findings of fact and credibility determinations.
• On appeal, the Superior Court is then required to defer to the Director’s fact-findings and credibility determinations, contained in the altered administrative record, despite the fact that the Director had no firsthand knowledge of the proceedings and had no ability to assess the credibility of witnesses.

Mr. B. asks the court to declare this unfair process to be unconstitutional. NCLA is also challenging DCS’s decision to place Mr. B.’s name on the Central Registry before he had exhausted state-court appeals.

NCLA released the following statements:

“It is unconscionable that DCS should have the power to ruin a man’s life based on hearsay and fabricated allegations. Arizona courts have set the trend in independently interpreting the state constitution as protecting civil liberties to a greater extent than the federal constitution. In keeping with Arizona’s enviable tradition of judicial independence, impartiality, and non-acquiescence, we have asked the Court to vacate the DCS Director’s decision.”

—Adi Dynar, Litigation Counsel, NCLA

“Fairness must be a hallmark of all judicial and quasi-judicial proceedings.  To think that a DCS Director can “delete” the factual findings of an ALJ in order to find a person “guilty” is the height of unfairness.  This situation is made worse by the OAH’s refusal to allow Mr. B. to cross-examine his accusers.  All in all, the Director’s decision must be reversed to protect the reputation of a man who has spent his decades-long-career taking care of troubled youth.”

—Harriet Hageman, Senior Litigation Counsel, NCLA

For more background on this case visit:https://archive.nclalegal.org/phillip-b-v-gregory-mckay-and-arizona-department-of-child-safety/

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online at NCLAlegal.org.

Click here to download.

Washington, DC – The New Civil Liberties Alliance is asking the state Superior Court of Maricopa County to reverse an unjust decision by the Arizona Department of Child Safety (DCS) that overturned an independent administrative law judge’s (ALJ) ruling and wrongfully placed an innocent man on the Arizona Central Registry of child abusers for 25 years. Legal actions by the former Director of DCS and a state law that permits such draconian penalties on a mere showing of ‘probable cause’ are among the factors to blame for this injustice.

In the appellant’s opening brief, NCLA exposes several problems in the DCS process that merit review, including the low burden of proof (“probable cause”) DCS has to meet, the inability of defendants to cross-examine witnesses, and the DCS Director’s ability to reverse the independent ALJ’s findings and act as prosecutor, judge, and jury in deciding the fate of the accused. NCLA believes that these defects deprived our client Mr. B. of liberty without due process of law in violation of the Arizona Constitution and the U.S. Constitution.

Mr. B. (whose name has been redacted to preserve his anonymity) had enjoyed an untarnished career working as a coach, teacher and professional supervisor at group homes for troubled teens until the morning of June 28, 2018. That day a 15-year-old living in the group home supervised by Mr. B. fabricated accusations against him of “inappropriate restraint” of a 13-year-old teen resident who became disgruntled when asked to do his chores. According to the record, Mr. B. “placed his hand on the boy’s shoulder and admonished him to calm down” after the troubled teen became distressed.

After a two-day trial, at which the independent ALJ credited eyewitness testimony from Mr. B and from the only other adult present at the scene, DCS failed to convince the tribunal that probable cause existed to place Mr. B. on the Arizona Central Registry. The ALJ, therefore, cleared Mr. B. of the charge.

The remarkable series of events that occurred following the ALJ’s decision is nothing short of unconstitutional.

Despite the ALJ’s conclusion, state law allowed DCS to appeal the decision to then-DCS Director Gregory McKay. He proceeded to reverse the decision, deleted the ALJ’s findings of fact and credibility determinations, and ordered Mr. B’s name to be placed on the Central Registry for 25 years. Without court intervention to correct this gross abuse of power, it will destroy Mr. B’s reputation and career.

 
NCLA released the following statements:

“An Executive Branch political appointee should not be able to ‘delete’ facts found after a full trial by an independent judge. But that’s what former DCS Director McKay did. Hopefully, the state court will recognize the glaring due process and distribution of powers problems instead of giving deference to DCS’s decision.” —Adi Dynar, Litigation Counsel, NCLA

“What has happened to Philip B. is horrible. But the greater tragedy is that Arizona’s entire system for placing adults on the Central Registry for child abusers is fraught with due process violations. The state and federal constitutions dictate that decisions of this magnitude cannot be made without careful attention to the rights of the accused.” —Mark Chenoweth, Executive Director and General Counsel, NCLA

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Click here to download.

Washington, D.C. – The New Civil Liberties Alliance is taking a case to right a wrong committed by the Arizona Department of Child Safety (DCS). A core principle of the American justice system holds that defendants are considered innocent until proven guilty. But under the administrative review system in place at DCS, a mere finding of ‘probable cause’ by the agency’s Director will land the accused on the Arizona Central Registry of child abusers for 25 years. NCLA has filed a motion with the state Superior Court of Maricopa County to stay enforcement of the DCS Decision and Order, pending a fair trial on the abuse allegations.

For decades NCLA client Phillip B. has worked with youth in many capacities including counselor, football coach, teacher and professional supervisor of foster kids, devoting his career to making a positive difference in their lives. He had an untarnished reputation as a person working with youth. But in 2018, Mr. B. (whose name has been redacted to preserve his anonymity) found himself falsely accused of child abuse by one of the children in his care.

According to the findings of fact entered into the record, a 15-year-old resident where he was employed, accused him of using “inappropriate restraint” against a 13-year-old resident . In reality, Mr. B. had “placed his hand on the boy’s shoulder and admonished him to calm down” after the teen became distressed because he did not want to do chores. An administrative law judge (ALJ) from the Office of Administrative Hearings, which is independent of DCS, heard eyewitness testimony and made credibility determinations. She then concluded that probable cause did not exist to support a finding of abuse. In other words, she cleared Phillip B. of the charge.

Remarkably, despite the ALJ’s conclusion, DCS Director Gregory McKay rejected the findings, amended both the ALJ’s findings of fact and conclusions of law, and substituted his own judgment in place of the ALJ’s. Without court intervention, this turn of events would add Mr. B’s name as a child abuser on the Arizona Central Registry, utterly destroying his reputation and career.

The New Civil Liberties Alliance is challenging several aspects of the DCS process, including the low standard of proof (“probable cause”), the inability to cross-examine witnesses, and the ability of a bureaucrat at DCS to reverse the ALJ’s findings and act as prosecutor, judge, and jury in determining the fate of the accused.

“The arbitrary nature of a system that labels an innocent person as a child abuser based on ‘probable cause’ is unconstitutional. We believe agency action in this case contradicts current law, is not supported by substantial evidence, and is the ultimate abuse of administrative power.”—Adi Dynar, Litigation Counsel, NCLA

“The lack of due process inherent in DCS’s administrative review process is shocking. No one should be at risk for a penalty as severe as being placed on the Arizona Central Registry without a full and fair hearing and a verdict from an independent judge.” —Mark Chenoweth, Executive Director and General Counsel, NCLA

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online: NCLAlegal.org.

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Federal court appellate rules (and most state appellate and high courts) require party briefs to include a “standard of review” section (Federal Rule of Appellate Procedure 28(a)(8)(B)). Lawyers tend to pay little, if any, attention to this section. Usually, a single sentence from some random case can be copy-pasted into the brief, saying: questions of law are reviewed de novo, and the trial court’s findings of fact and credibility assessments need to be supported by substantial evidence.

In seeking judicial review of administrative decisions, the standards of proof and review, which are thought to be well-established and beyond reproach, create some special problems. There are frustratingly few cases that have attempted to take a closer look at how the lax (or, sometimes, nonexistent) standards of proof, evidence, and procedure in administrative adjudications, coupled with the substantial-evidence standard of appellate review applied by courts reviewing administrative fact-finding, deprive non-governmental litigants of their civil liberties.

Evan D. Bernick and John Gibbons have presented persuasive arguments in their respective law review articles as to why judicial deference to administrative fact-finding is unconstitutional. Bernick argues that such fact deference violates both Article III and the Fifth Amendment’s Due Process Clause. Gibbons argues that jury-less administrative fact-finding fails the Seventh Amendment. Bernick proposes an alternative: de novo determination of questions of fact in Article III courts. Gibbons’ proposed alternative mirrors Bernick’s: fact-finding should occur in federal courts in the first instance.

NCLA’s original litigation, Phillip B. v. Faust, brings to light this unconstitutional coupling of administrative fact-finding with the deferential substantial evidence standard of judicial review. Mr. B., whose name is protected in compliance with court rules, underwent an administrative hearing in front of an Administrative Law Judge (ALJ) of the Arizona Office of Administrative Hearings (OAH). OAH is an Arizona state agency comprised of a pool of ALJs who preside over administrative adjudications arising out of almost all Arizona state agencies.

The ALJ conducted a two-day trial where eyewitnesses presented sworn and fully cross-examined testimony. The ALJ adhered to rules of evidence and rules of procedure—rules that are designed to protect the due process rights of all litigants. At the conclusion of that bench trial, the ALJ found facts and assessed credibility of witnesses, all of which went in Mr. B.’s favor. Based on those facts, the ALJ entered conclusions of law that gave Mr. B. a resounding victory over DCS’s false accusations of child abuse leveled against him.

Dissatisfied with the ALJ’s decision, DCS appealed the decision to DCS’s Director. The DCS Director can statutorily reject or modify the ALJ’s credibility assessments and findings of fact without ever observing live witness testimony. And that’s what the Director did. He was never in the ALJ’s courtroom, yet he deleted key ALJ findings of fact and credibility assessments and inserted his own alternative set of facts—which were unsworn, never proved at trial, and subject to neither confrontation nor cross-examination. Based on the alternative facts, he concluded that Mr. B. was guilty.

On appeal to the state trial court, the court deferred under the substantial evidence standard to the DCS Director’s findings of fact and credibility assessments—not to the ALJ’s. To be sure, fact-finding deference itself is unconstitutional for the reasons Bernick and Gibbons state. Such deference assuredly deprives non-governmental litigants like Mr. B. of due process because it enables courts to gloss over and whitewash much mischief that occurs during agency adjudications. By empowering an administrative agency to act as the judge and jury in cases where the same agency performs investigatory, accusatory, prosecutorial, and enforcement functions, fact-finding deference also disregards the separation of powers doctrine.

If a court were reluctant to reject the substantial-evidence standard under the due-process, separation-of-powers, or Seventh-Amendment arguments, however, at least it should think carefully as to whether fact-finding deference is due an agency adjudicator who takes sworn, cross-examined witness testimony in the adjudicator’s presence and finds facts on that basis (like the ALJ in Mr. B.’s case)—or whether fact-finding deference given to an agency adjudicator who flouts all rules of evidence, procedure, and proof (like the DCS Director in Mr. B.’s case) is constitutionally permissible. Short of revisiting the constitutionality of the substantial-evidence standard, the court could lessen if not eliminate the risk of erroneously depriving litigants like Mr. B. of their civil liberties if it concludes that substantial evidence applies only as a standard to review the facts found by an agency adjudicator who follows court-style rules of proof, evidence, and procedure.

For Mr. B., answering the fact-finding deference question is imperative because it leads to one of two possibilities—a full exoneration, or a lifelong label attached to his name: child abuser. It would be grave folly for the court to not check the fact-checkers when so much is at stake.

The fact-finding deference question is front and center in Mr. B.’s opening brief in the Arizona Court of Appeals. That case deals with Arizona administrative law. Eventually, a federal court should take a hard look at substantial evidence as a standard of reviewing federal administrative fact-finding. Until then, Mr. B.’s case, along with the Bernick and Gibbons articles, lays the necessary groundwork for such a federal challenge.