Mary Haley v. Commonwealth of Virginia, Virginia Real Estate Appraiser Board ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Senior Judge Fitzpatrick
Argued at Alexandria, Virginia
MARY HALEY
MEMORANDUM OPINION* BY
v. Record No. 0014-06-4 JUDGE ROBERT J. HUMPHREYS
OCTOBER 3, 2006
COMMONWEALTH OF VIRGINIA,
VIRGINIA REAL ESTATE APPRAISER BOARD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
John W. Thyden (Thyden, Gross & Callahan, on briefs), for
appellant.
Eric A. Gregory, Assistant Attorney General (Robert F. McDonnell,
Attorney General; James W. Hopper, Senior Assistant Attorney
General, on brief), for appellee.
Mary Haley (“Haley”) appeals the trial court’s dismissal, with prejudice, of her petition
for appeal regarding the Virginia Real Estate Appraiser Board’s (“Board”) revocation of her
appraiser’s license. Specifically, Haley contends that “she was not afforded due process” by the
Board and that the Board’s decision was not based upon “clear and convincing evidence,” as
required to revoke her license.1 For the following reasons, we affirm the judgment below.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
1
Haley phrases her second question presented as follows: “Was the decision of the Real
Estate Appraiser Board arbitrary and capricious?” The Commonwealth phrases the question
presented as follows: “Was the Real Estate Appraiser Board’s decision based upon substantial
evidence?” The Commonwealth argues, on brief, that the second question presented, as phrased
by Haley, does not conform to the specific objection noted on the circuit court’s final order.
Thus, the Commonwealth contends that it is not properly preserved for appeal. However, when
read in conjunction with one another, we find that the question presented is, in essence, a
sufficiency of the evidence argument. Thus, we find that it is properly before this Court.
ANALYSIS
In accordance with familiar principles of appellate review,
“we review the facts in the light most favorable to sustaining the
[Board]’s action,” Atkinson v. Virginia Alcohol Beverage Control
Comm’n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985), and
take due account of the presumption of official regularity, the
experience and specialized competence of the agency, and the
purposes of the basic law under which the agency has acted, Code
§ 2.2-4027.
Crutchfield v. State Water Control Bd., Dep’t of Envtl. Quality, 45 Va. App. 546, 555, 612
S.E.2d 249, 254 (2005). When appealing an agency decision to the circuit court, “the burden is
upon the appealing party to demonstrate error.” Carter v. Gordon, 28 Va. App. 133, 141, 502
S.E.2d 697, 700-01 (1998). The judicial review of that decision is limited to determining
“whether the agency acted in accordance with law,” “whether the agency made a procedural
error which was not harmless error,” and “whether the agency had sufficient evidential support
for its findings of fact.” Crutchfield, 45 Va. App. at 553, 612 S.E.2d at 253; Johnston-Willis,
Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1998).
A. Due Process
Although we generally give great deference to an agency decision, “[i]f the issue falls
outside the area generally entrusted to the agency, and is one in which the courts have a special
competence, i.e., the common law or constitutional law, there is little reason for the judiciary to
defer to an administrative interpretation.” Johnston-Willis, 6 Va. App. at 243-44, 369 S.E.2d at
8. Accordingly, when a litigant contends that he was deprived of due process during an
administrative proceeding, we review the administrative proceedings de novo, giving no
deference to the judgment below. See id.; see also Department of Prof’l & Occupational
Regulation v. Abateco Servs., 33 Va. App. 473, 479, 534 S.E.2d 352, 355 (2000).
In this case, Haley does not contend that she was deprived of “reasonable notice” or an
“opportunity to be heard,” as required to satisfy procedural due process. McManama v. Plunk,
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250 Va. 27, 34, 458 S.E.2d 759, 763 (1995) (“Procedural due process guarantees that a person
shall have reasonable notice and opportunity to be heard before any binding order can be made
affecting the person’s rights to liberty or property.”); see also Klimko v. Virginia Employment
Comm’n, 216 Va. 750, 757, 222 S.E.2d 559, 565 (1976) (holding that, to satisfy procedural due
process, it is sufficient to provide an opportunity for a hearing and a judicial determination).
Rather, Haley argues that she was not afforded procedural due process because the Board
deprived her of the “right to cross-examine” and the “right to have testimony given under oath.”
We disagree.
As noted above, procedural due process only guarantees that an individual have an
“opportunity to be heard.” Id. The constitutional right to confront and cross-examine witnesses
is found in the Sixth Amendment and, thus, applies only in criminal cases. Therefore, there is no
general constitutional right, during that “opportunity to be heard,” to cross-examine witnesses
and have testimony provided under oath. Accordingly, unless those “rights” are guaranteed by
statute or rule, it follows that there was no procedural due process violation in this case.
In a formal hearing, there is a statutory right to cross-examination. See Code
§ 2.2-4020(C). Specifically, Code § 2.2-4020 states, in part:
A. The agency shall afford opportunity for the formal taking of
evidence upon relevant fact issues in any case in which the basic
laws provide expressly for decisions upon or after hearing and may
do so in any case to the extent that informal procedures under
§ 2.2-4019 have not been had or have failed to dispose of a case by
consent.
* * * * * * *
C. In all such formal proceedings the parties shall be entitled to be
accompanied by and represented by counsel, to submit oral and
documentary evidence and rebuttal proofs, to conduct such
cross-examination as may elicit a full and fair disclosure of the
facts, and to have the proceedings completed and a decision made
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with dispatch. The burden of proof shall be upon the proponent or
applicant.
(Emphasis added.)
In contrast, according to Code § 2.2-4019,
A. Agencies shall ascertain the fact basis for their decisions of
cases through informal conference or consultation proceedings
unless the named party and the agency consent to waive such a
conference or proceeding to go directly to a formal hearing. Such
conference-consultation procedures shall include rights of parties
to the case to (i) have reasonable notice thereof, (ii) appear in
person or by counsel or other qualified representative before the
agency or its subordinates, or before a hearing officer for the
informal presentation of factual data, argument, or proof in
connection with any case, (iii) have notice of any contrary fact
basis or information in the possession of the agency that can be
relied upon in making an adverse decision, (iv) receive a prompt
decision of any application for a license, benefit, or renewal
thereof, and (v) be informed, briefly and generally in writing, of
the factual or procedural basis for an adverse decision in any case.
(Emphasis added.) In other words, where the basic laws do not provide for a formal hearing, the
law does not mandate one. See EDF v. Va. State Water Control Bd., 12 Va. App. 456, 464, 404
S.E.2d 728, 732-33 (1991) (holding that “[t]he right to a formal hearing is governed by the
VAPA and the basic law” and that “formal hearings are not mandatory under Code
§ 9-6.14:12.”).2 In fact, an agency is required to hold an informal fact-finding conference (IFF)
unless both parties agree to proceed directly to a formal hearing. See Code § 2.2-4019.
Here, Haley never requested a formal hearing,3 nor was she guaranteed one by statute.
See Code § 2.2-4020. Thus, because Haley had an informal hearing pursuant to Code
§ 2.2-4019, we hold that Code § 2.2-4020 is inapplicable. Moreover, under the plain meaning of
Code § 2.2-4019, Haley was not entitled to cross-examine the witnesses or force those witnesses
2
Former Code § 9-6.14:12 is now Code § 2.2-4020.
3
We also note that Haley failed to appear at the regularly scheduled Board meeting
during which the Board was to consider her case.
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to provide their testimony under oath. See Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447
(1934) (“Where the legislature has used words of a plain and definite import the courts cannot
put upon them a construction which amounts to holding the legislature did not mean what it has
actually expressed.”). And because there is no constitutional right to cross-examination during
an informal hearing, it follows that the administrative hearing complied with the requirements of
procedural due process.
B. Sufficiency of the Evidence
“In determining whether there is substantial evidence to support findings of fact, on
appeal, the appellate court gives great deference to the agency decision.” Johnston-Willis, 6
Va. App. at 246, 369 S.E.2d at 9. “In determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses.” Crutchfield, 45 Va. App. at 555, 612 S.E.2d at
254 (quoting Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991)) (internal quotations omitted). Moreover, “[u]nder the substantial evidence standard, the
reviewing ‘court may reject the agency’s findings of fact “only if, considering the record as a
whole, a reasonable mind would necessarily come to a different conclusion.”’” Id. at 553, 612
S.E.2d at 253 (quoting Virginia Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123,
125 (1983)).
In this case, the trial court relied on the agency record and counsel’s briefs to dismiss the
petition for appeal and affirm the Board’s final order and opinion. The agency record contains
Mr. Castle’s summary of the IFF, which indicates that Haley, Bert Lloyd, Stephen Rochkind, and
Sheri Sylvester participated in the IFF. Based upon the testimony and the exhibits, Castle came
to the following conclusions: (1) He found unpersuasive Haley’s assertion that Sylvester was
upset with her because she wanted a higher appraised value of her home, (2) Sylvester did not
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file the complaint with the Board, and thus had no motive to lie about never seeing Haley before
the IFF, (3) because Haley testified that she was appraising fifteen to twenty homes a week, there
is a plausible reason why Lloyd may have conducted the appraisal, and (4) Haley and Lloyd’s
testimony was “evasive” and “unconvincing.” Cleary, there was credible evidence to support the
conclusion that Haley did not perform the appraisal, and, thus, we hold that the trial court did not
err in dismissing the petition for appeal.
CONCLUSION
Haley never requested a formal hearing, as permitted under Code § 2.2-4020, and thus
was not entitled to cross-examination or testimony under oath pursuant to Code § 2.2-4019.
Moreover, there is credible evidence in the record to support the trial court’s decision to dismiss
Haley’s petition for appeal. Accordingly, we affirm the judgment below.
Affirmed.
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