Davenport sued the Morris County Board of County Commissioners alleging his due process rights were violated because the county counselor had dual roles, serving both as the County’s legal advisor and also as the its advocate. The district court and the Court of Appeals found for the County holding there was no due process violation. The Supreme Court of Kansas determined there was a due process violation and reversed.
The plaintiff alleged that the county counselor’s dual roles violated their due process rights, as the county attorney both advocated against the plaintiff’s application, while also advising the board on legal and procedural matters, including drafting the county’s formal decision regarding the plaintiff.
The county argued, and the prior courts agreed, that for a due process violation to be found, the dual roles must create actual bias; that the counselor “actually influenc[ed] or affect[ed] the Board’s decision.” The plaintiff compelled the courts to follow the standard that an “appearance of impropriety of bias” is sufficient to find a due process violation. As there was no clear cut standard in Kansas, the court reviewed the Kansas cases that were on-point and also addressed Supreme Court decisions.
The Kansas Supreme Court held that, “the mere appearance of impropriety is insufficient to constitute a due process violation.” For a due process violation to be found, all the circumstances must be taken into account and the “‘probable risk of actual bias [must be] too high to be constitutionally tolerable.”The court then turned to the merits of the case. The court noted that the county attorney represented the defendant on virtually all the matters concerning the plaintiff, which spanned ten years. In his first role as the defendant’s legal advisor, he advised on all actions concerning the plaintiff, including drafting rejection letters, finding an appraiser, instructing on how to proceed, advised commissioners to agree on a damages figure, and drafted the written decision. In his role as the defendant’s sole advocate, he represented the defendant on all proceedings against the plaintiff. Also, during the damages hearing, the counselor argued against the plaintiff’s evidence, cross examined the plaintiff’s witnesses, and called witnesses.
Looking at the entirety of the circumstances, the court determined the plaintiff showed probable risk of actual bias that was not constitutionally tolerable. The probability of bias, the court noted, was most exemplified in the process leading to the awarding of damages. The counselor recommended the appraiser, who became the expert witness, the counselor advised the commissioners to agree upon a damage amount when they all initially had different figures (they agreed upon the sum determined by the counselor’s expert witness), and finally the counselor had been present during the some of the damages meetings and he wrote the final decision. Taken together, the court concluded that these facts were sufficient to find a probable risk of bias that was not tolerable.
In a concurring opinion, another justice noted that the fault arose because the defendant chose to have its attorney play the additional advisory role in the hearing process, as it took any fairness out of the adjudicative process.
Davenport v. Morris County Board of County Commissioners, 2010 Kan. LEXIS 622 (Kan. 9/10/2010)
The opinion can be accessed at: http://www.kscourts.org/Cases-and-opinions/opinions/SupCt/2010/20100910/98342.pdf
