¶ 14 To resolve this cause, we need not reach the question of whether the Board met its necessary standard proof to discipline the appraiser. Rather, this cause concerns the much more fundamental question of whether the appraiser could receive a neutral, fair, and impartial hearing before the Board. The only person reviewing her, and testifying regarding her performance, was a competing license holder with a pecuniary interest in the outcome who is married to the disciplined appraiser's ex-husband.
¶ 15 When an administrative board acts in an adjudicative capacity, it functions much like a court.
13 Consequently, such proceedings require a minimum standard of due process such as notice and an opportunity to be heard.
14 In Wolfenbarger v. Hennessee, 1974 OK 38, ¶¶ 10–15, 520 P.2d 809, a case involving a city council's revocation of a pawnbroker's license, the Court explained that an administrative board acts in quasi-judicial capacities and must function like a court. We said:
․ If it is necessary to procure a license in order to carry on a chosen profession or business, the power to revoke a license once granted is penal and should be strictly construed.․
․ A city council exercises quasi-judicial powers when it acts as an administrative board authorized to revoke pawnbrokers licenses. However, it may not ignore due process nor act arbitrarily․
․ The constitutional guaranty of due process of law applies to administrative as well as judicial proceedings where such proceedings are quasi-judicial in nature․The due process clauses of the State and Federal Constitutions afford protection against arbitrary and unreasonable administrative actions․
․ Where the ordinance prescribes a particular method of procedure for the revocation of a license it must be followed. In the absence of such a provision, there must be substantial compliance with the fundamental rules of substantial justice and fair play․
An administrative hearing, particularly where the proceedings are judicial or quasi-judicial, must be full, fair and adequate; ․ (Citations omitted)
¶ 17 Independence and impartiality are required of the courts.
15 Although we have not addressed the precise circumstances presented here, we have previously examined a licensing board's responsibility to provide a licensee, not only with a neutral and impartial proceeding but also a proceeding which appears neutral and impartial.
¶ 18 In Johnson v. Board of Governors of Registered Dentists, 1996 OK 41, ¶ 22, 913 P.2d 1339, a dentist petitioned this Court for judicial review of the Board of Governors of Registered Dentists' disciplinary action against him. The dental board received complaints against the dentist and, after a preliminary investigation into the complaints, submitted the findings to a board member from the district in which the complaint arose. That member was another dentist who was a direct competitor in the same geographical area as the accused dentist. The board member investigated the allegations, made recommendations to the board, ruled on pre-hearing motions, and went so far as to make decisions which were strictly within the province of the board.
¶ 19 First, the Court noted substantial interest one has in a professional license, stating that:
1) the possible loss of a constitutionally protected property right, the loss of a livelihood, and the loss of a professional reputation are greater than monetary losses;
2) there is high risk when an agency seeks to revoke a professional license and revocation proceedings have the agency acting as investigator, prosecutor, and decision maker; and
3) the risk is increased where a competitor of the defendant serves as the investigator and makes prosecutorial recommendations to the Board.
¶ 20 Next, the Court examined the quasi-judicial nature of a disciplinary proceeding, noting that such a proceeding requires neutrality, impartiality, and the appearance of an unbiased, impartial adjudication. We said:
․ This Court has consistently held and due process requires every litigant receive a decision that is the result of ‘the cold neutrality of an impartial judge.’ ․ Likewise, the Oklahoma Statutes require an agency member to ‘withdraw from any individual proceeding in which [the member] cannot accord a fair and impartial [913 P.2d 1348] hearing or consideration’․ ‘When circumstances and conditions surrounding litigation are of such a nature that they might cast doubt and question as to the impartiality of any judgment the trial judge may pronounce, said judge should certify his disqualification.’ ․ This is an objective standard and is not dependent on the judge's belief․ This rule applies equally to administrative boards acting in an adjudicatory capacity as it does to judges․It is presumed someone who has a financial interest in the outcome of a decision, even a pretrial decision, cannot render a decision with ‘the cold neutrality of an impartial judge.’ (Citations omitted)
What Johnson, supra, illustrates is that: 1) the risk of error is increased when a board's decision is based solely on the review and testimony of a competitor of the person being disciplined; and 2) the appearance of impartiality is as important as an actual impartiality or a conflict of interest.
¶ 21 Here, unlike the board member in Johnson, the review appraiser was not a member of the Board, nor did she participate in the decision to discipline the appraiser. Nevertheless, she was: 1) the only witness upon which all of the evidence rested; 2) a competitor in the same geographic area as the appraiser; 3) likely to be economically impacted by the Board's decision regarding the appraiser; and 4) once the next door neighbor who married the man next door, who happened to be the appraiser's husband. Without doubt, these circumstances cast doubt as to the unbiased, unprejudiced, impartiality of not only the witness but also the entire proceeding.
¶ 22 We do not doubt that the review appraiser had good intentions and believed herself to be unbiased, unprejudiced and impartial, especially considering that the name of the appraiser was blacked out when she was reviewing the appraisal. Nevertheless, as we noted in Johnson, supra, the question is not whether one personally believes herself or himself to be unprejudiced, unbiased, and impartial, the question is whether the circumstances are of such nature to cause doubt as to his or her partiality, bias, or prejudice.
16
¶ 23 While the same strict requirements applicable to judges or administrative adjudicators may not apply to all witnesses in every administrative adjudication, serious due process concerns are implicated in this cause which could have easily been avoided by selecting a reviewer from a different region. We hold that under the Johnson standards, the totality of the circumstances gives an appearance of impropriety and conflict of interest in the Board's disciplinary proceedings. Accordingly, we affirm the trial court's nullification and reversal of those proceedings.
CONCLUSION
¶ 24 Because our adversarial system of justice places a premium on the fairness of a judicial proceeding, or, as in this cause, a quasi-judicial procedure, regardless of whether the witness believed that she was impartial, it is the appearance of impartiality and actual conflict of interest that conflicts with the disciplined appraiser's minimum constitutional due process rights. Accordingly, we affirm the trial court's nullification and reversal of the disciplinary proceedings.
Case opinion for OK Supreme Court BOWEN v. STATE OKLAHOMA REAL ESTATE APPRAISER BOARD. Read the Court's full decision on FindLaw.
caselaw.findlaw.com
no matter what you never lose your constitutional rights. the borrower has a financial interest. all such complaints should be dismissed based on their obvious intentions.
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