The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6742 December 4, 1992 CONSTITUTIONAL LAW: Due process and administrative hearings Due process requires that a member of the county zoning commission serving as the statutorily-required member of a county zoning board of appeals refrain from participating in the review of any decision in which the member has previously participated as a member of the county zoning commission. Honorable Robert Bender State Representative The Capitol Lansing, MI You have asked whether a member of a county zoning commission who is also a statutorily-required member of the county zoning board of appeals may participate in deciding a case before the zoning board of appeals when the member participated in the earlier decision issued by the county zoning commission. County zoning is authorized by and is subject to the provisions of the county rural zoning enabling act, MCL 125.201 et seq; MSA 5.2961(1) et seq. The primary role of the county zoning commission is to prepare a proposed county zoning plan and a proposed county zoning ordinance for consideration by the county board of commissioners. Under the county zoning ordinance, the county zoning commission may also be assigned the responsibility for reviewing and determining whether to approve special land uses, planned unit developments and site plans. See, respectively, sections 16b(1); 16c(2) and 16e(2) of the county rural zoning enabling act. As provided in MCL 125.218(2); MSA 5.2961(18)(2), the county zoning board of appeals is to include, among its members, a member of the county zoning commission: One member of the board of appeals shall be a member of the county zoning commission. The term of a member of the county board of zoning appeals serving because of membership on the zoning commission shall expire upon termination of membership on the zoning commission. Since the membership is explicitly required by the statute, there is no question of incompatibility of offices. See OAG, 1985-1986, No 6268, p 5 (January 24, 1985). Under section 20 of the county rural zoning enabling act, an appeal may be taken to the zoning board of appeals regarding special land use and planned unit development decisions only if provided for in the zoning ordinance. Thus, there is nothing in the statutory framework which raises a constitutional question unless the county ordinance designates the county zoning commission as a body to grant or deny approval of special land uses, planned unit developments and site plans and the ordinance empowers the county board of zoning appeals to review special land use and planned unit development decisions. If the county zoning commission does deny a zoning request and that denial is appealed to the county zoning board of appeals, the question arises whether the prior participation of the member of the zoning commission in that decision disqualifies the member from participating in the review of that decision by the zoning board of appeals. Research discloses no appellate case on this specific issue in Michigan. (1) However, Michigan courts have held that the right to an impartial decisionmaker is a required part of due process in administrative hearings. Crampton v Dept of State, 395 Mich 347, 351; 235 NW2d 352 (1975). In Crampton, at 353-354, the court discussed at length cases of the United States Supreme Court which found that due process required that where a review of an initial decision was mandated, the decisionmaker must be someone other than the person who made the decision under review: (4) Prejudged Case because of Prior Involvement The Court held in In re Murchison, 349 US 133; 75 SCt 623; 99 LEd 942 (1955), that a Michigan one-man grand juror could not try for contempt witnesses who had appeared before him and whom he had charged with perjury and refusal to answer questions. In Goldberg v Kelly, 397 US 254, 271; 90 SCt 1011; 25 LEd2d 287 (1970), the Court held that procedural due process required that welfare recipients be afforded an evidentiary hearing before termination of benefits and declared that "of course, an impartial decision maker is essential". "[P]rior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review." In Morrissey v Brewer, 408 US 471, 485, 489; 92 SCt 2593; 33 LEd2d 484, 497 (1972), the Supreme Court held that a parolee is entitled to a hearing before a "neutral and detached" board before his parole is revoked and to a preliminary determination that there is probable cause to hold him pending that hearing. The preliminary determination "that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case". The Court [in Withrow v Larkin, 421 US 35, 58 n 25; 95 SCt 1456; 43 LEd2d 712 (1975) ] said that Morrissey "held that when review of an initial decision is mandated, the decisionmaker must be other than the one who made the decision under review" and indicated that Goldberg was a similar case. (Emphasis supplied.) (Footnotes omitted.) In Spratt v Dept of Social Services, 169 MichApp 693, 699-700, 426 NW2d 780 (1988), the risk that the initial decisionmaker has already prejudged the matter under review was noted as the rationale for the requirement for another decisionmaker at the next stage of review: The right to a hearing before an unbiased and impartial administrative decisionmaker is a basic requirement of due process and of MCL 24.279; MSA 3.560(179). Actual bias need not be shown to obtain disqualification of a hearing officer; rather, the situation must be one where the probability of actual bias is too high to be constitutionally tolerable. Crampton v Dep't of State, 395 Mich 347, 354; 235 NW2d 352 (1975). One situation presenting such an intolerable risk is where a decisionmaker is put in the position of reviewing a decision he or she initially made. Id. Because this situation poses an intolerable risk that the decisionmaker may have prejudged the case, due process requires a new decisionmaker. 395 Mich 351. These decisions of Michigan's appellate courts, based, in part, on decisions of the United States Supreme Court, compel only one conclusion. In an administrative proceeding, the due process requirements of the Fourteenth Amendment and Const1963, art 1, Sec. 17, include an unbiased decisionmaker who has not participated in making the decision under review. It is my opinion, therefore, that due process requires that a member of the county zoning commission serving as the statutorily-required member of a county zoning board of appeals refrain from participating in the review of any decision in which the member has previously participated as a member of the county zoning commission. Frank J. Kelley Attorney General (1 In OAG, )