Supreme Court Decides Due Process is Violated by Biased Member of Panel Despite Unanimous Vote

The Delaware Supreme Court decided an issue of first impression this month in a ruling that exemplified the symbol for justice (at left), blindfolded (indicating impartiality) and holding level scales (for fairness).

In Sullivan v. Elsmere, No. 467, 2010(Del. Supr. June 17, 2011), Delaware’s High Court, sitting en banc, ruled that when one member of a seven-member panel demonstrates a prima facie bias, even a unanimous vote by that panel violates due process if the panel acts without removing the tainted member of the panel.

Although the panel in this matter was formed by the Town Council and Mayor of a small town in Delaware, and their decision involved the termination of the police chief, the principles espoused in the Court’s opinion are a celebration of fundamental concepts on which our country is based, and have at least theoretical relevance in a broader context to group dynamics and the toxic influence on a group when even one person among many is less than impartial.

Brief Factual Context

The factual background of this case involved one member of the panel who, prior to the vote, had threatened the police chief and told him, in essence, that he was “… finished in this town” because the chief had not hired a boyfriend of the panel member’s daughter.

Issue

Whether one allegedly partial member of a multi-member tribunal taints the entire tribunal’s decision and deprives a party of due process even when the tribunal’s decision is unanimous.

Analysis

Even if the panel member were not biased in fact, the  Court explained that the evidence presented the appearance of bias, and the Court reasoned that: “… the appearance of bias [was] sufficient to cause doubt about [the tainted panel member's] impartiality because an objective observer viewing the circumstances would conclude that [the tainted panel member] could not or would not participate fairly or impartially in [the police chief's] hearing”.

Requirement of Fundamental Fairness

It is well-settled that a “fair trial is a basic requirement of due process” and this fundamental concept “applies to administrative agencies as well as courts”. Although the requirement in Delaware’s Constitution of a unanimous jury in criminal proceedings was noted by comparison, the Court was aware that in this case a unanimous vote of the panel was not required (even though the dismissal of the police chief was unanimous on the points that were sufficient to dismiss him.)

The Chief Justice, writing for the full court, referred to many other courts that have addressed the issue and found that “the prevailing perspective is that the bias of one member of a multi-member adjudicatory tribunal taints the entire tribunal’s decision and deprives the party subject to the tribunal’s judgment of due process.” The opinion went on to discuss the group dynamics of decisionmaking and the impact that one person can have on the group. Also, while reversing and remanding the case for a new hearing, the Court was aware of the lack of predictability that the result of a new hearing would be different.

Cross-Appeal Procedural Issue

Another important aspect of the opinion was a procedurally important part of appellate practice called “cross-appeals”. Anyone involved in an appeal to the Delaware Supreme Court should read the section of the opinion accompanying footnotes 8 to 18. In sum, if one wants to argue any “adjustments” to any aspect of the lower court’s decision, a cross-appeal is the safe route. The opinion quoted from a U.S. Supreme Court decision that described the “cross-appeal rule”, in part, as:

“… that unwritten but longstanding rule, [pursuant to which] an appellate court may not alter a judgment to benefit a nonappealing party…. It takes a cross-appeal to justify a remedy in favor of an appellee.”