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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)



Opinion No. 6174

August 3, 1983


Federal and state due process clauses--presence at informal hearing of police officer issuing traffic citation


Presence at informal hearing of police officer issuing traffic citation

The due process clauses of the federal and state constitutions require that police officers issuing a traffic citation must be present at informal hearings held pursuant to 1949 PA 300, Sec. 746.

John F. Nichols

Chief of Police

City of Farmington Hills

31555 Eleven Mile Road

Farmington Hills, Michigan 48018

You have requested my opinion on the following question:

May a police officer submit a sworn statement in lieu of appearing at an informal hearing under the provisions of 1949 PA 300, Sec. 746 on a traffic citation issued by the officer?

1949 PA 300, Sec. 746, as last amended by 1980 PA 426; MCLA 257.746; MSA 9.2446, establishes an informal hearing for persons wishing to contest traffic citations, and provides, in pertinent part:

'(1) The judge, referee, or district court shall conduct the informal hearing in an informal manner so as to do substantial justice according to the rules of substantive law. . . .

'(3) [T]he citing police agency . . . may subpoena witnesses for the plaintiff. The defendant may also subpoena witnesses. . . .

'(4) If the judge, referee, or district court magistrate determines by a preponderance of the evidence that the person cited is responsible for a civil infraction, the judge, referee, or magistrate shall enter an order against the person as provided in section 907. . . .'

In Goldberg v Kelly, 397 US 254, 269-270; 90 S Ct 1011; 25 L Ed 2d 287 (1970), the United States Supreme Court held, with respect to informal administrative hearings:

'In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E.g., ICC v Louisville & N. R. Co., 227 US 88, 93-94, 57 L Ed 431, 434, 33 S Ct 185 (1913); Willner v Committee on Character & Fitness, 373 US 96, 103-104, 10 L Ed 2d 22, 229, 230, 83 S Ct 1175, 2 ALR3d 1254 (1963). What we said in Greene v McElroy, 360 US 474, 496-497, 3 L Ed 2d 1377, 1390, 1391, 79 S Ct 1400 (1959), is particularly pertinent here:

'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny." (Emphasis added.)

The Michigan Supreme Court discussed due process requirements in informal administrative proceedings in Milford v People's Community Hospital Authority, 380 Mich 49, 58, 59; 155 NW2d 835 (1968), and quoted the rule established in Napuche v Liquor Control Commission, 336 Mich 398, 403, 404; 58 NW2d 118 (1953):

"'Unless the right is waived, the person charged is at least entitled to:

"'(1) Notice of a time and place of hearing.

"'(2) A hearing before a properly authorized body.

"'(3) A reasonably definite statement of the charge or charges preferred against the accused.

"'(4) The right to cross-examine the witnesses who testify against him.

"'(5) The right to produce witnesses in his own behalf.

"'(6) A full consideration and a fair determination according to the evidence of the controversy by the body before whom the hearing is had.' Hanson v. State Board of Registration in Medicine (1931), 253 Mich 601, 607." (Emphasis added.)

See, Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976).

It is my opinion, therefore, that the due process provisions of the Constitutions of the United States and of Michigan require that police officers issuing traffic citations must be present at informal hearings held pursuant to 1949 PA 300, Sec. 746, supra.

Frank J. Kelley

Attorney General

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