Harry Duchesne v. Wylie L. Williams, Jr., and the City of Inkster, a Municipal Corporation

RYAN, Circuit Judge

(dissenting).

As the author of the opinion for this court that affirmed the decision of the district court and which was later vacated by the order of a majority of my colleagues, I respectfully dissent.

I have no disagreement at all with the court’s assertion that the pretermination hearing to which certain public employees are entitled does not carry with it the whole panoply of guarantees that may be required by the due process clause for a post-termination hearing such as the rights to produce witnesses, introduce evidence, cross-examine witnesses, and have the assistance of counsel. Likewise, I agree that the Constitution does not entitle a tenured public employee to a pretermination hearing before a “neutral decisionmaker” or “an impartial judge,” as my colleagues put it.

The court’s en banc opinion incorrectly states that

The District Court, and the panel decision of our Court which has now been vacated by the grant of en banc review (see Rule 14, Rules of the Sixth Circuit), held that [Cleveland Board of Education v.] Loudermill [, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985),] requires a pretermination hearing before a neutral decisionmaker....

(Emphasis added.) This court’s panel decision did not hold that Loudermill requires a hearing before a “neutral decisionmaker.” The district court said that; the panel did not. Indeed, writing for the panel, I stated:

*1010 It is not constitutionally required that the decisionmaker be absolutely impartial.

Duchesne v. Williams, No. 86-1017, slip op. at 12 (6th Cir. June 16, 1987).

If, however, there is a constitutional entitlement to a pretermination hearing in this case, as my colleagues correctly hold there is, it must of necessity be a hearing that has some meaning to it — a hearing in which there is at least a reasonable likelihood that the person conducting the hearing, if not entirely impartial, is not so personally involved in the accusation and charges against the subject employee as to be incapable of “hearing” what the employee has to say because of the preempting, deafening sound of his own biased accusatory voice. If at least that measure of impartiality is not required of the individual conducting a pretermination hearing, then the hearing would indeed be meaningless.

My brother observes “that there may be cases — perhaps this is one of them — in which the supervisory official is so biased that the Loudermill ‘right of reply’ process is meaningless.” Indeed it is one of them, and that was the basis for the district court’s decision, this court’s panel decision, and this dissent.

As I pointed out in part IV of the opinion for the court, from which there was no dissent, and which has now been vacated,

In the district court’s view, the pre-exist-ing animosity between Williams and Du-chesne, and the fact that it was Williams who initially fired Duchesne, who developed many of the charges against Du-chesne, who testified against Duchesne at the hearing, and who thereafter weighed the evidence and decided that it supported Duchesne’s termination, sufficed to destroy the fairness of the termination hearing.

We recognize that an employment termination hearing is ordinarily presided over by a decisionmaker with at least some connection with the employer, if not a broad shared interest. It is not constitutionally required that the deci-sionmaker be absolutely impartial. In Hortonville Joint School District v. Hortonville Education Ass’n, 426 U.S. 482 [ 96 S.Ct. 2308 , 49 L.Ed.2d 1 ] (1976), the Supreme Court held that striking teachers’ termination hearings before the same body against whom they were striking, the local school board, and with whom the teachers bargained collectively over the terms of their employment, were not constitutionally invalid. The Court reasoned that “the teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity.” Id. at 491-92 [ 96 S.Ct. at 2313-14 ]. The Court also stated:

“Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not ... disqualify a decisionmaker. Withrow v Larkin, 421 US 35, 47 , 43 L Ed 2d 712 , 95 S Ct 1456 [1464] (1975); FTC v Cement Institute, 333 US 683, 700-703 , 92 L Ed 1010 , 68 S Ct 793 [803-804] (1948). Nor is a decision-maker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ United States v Morgan, 313 US 409, 421 , 85 L Ed 1429 , 61 S Ct 999 [1004] (1941); see also FTC v Cement Institute, supra, at 701, 92 L Ed 1010 , 68 S Ct 793 [at 803].”

Id. at 493 [ 96 S.Ct. at 2314 ]. After weighing the interests involved, the Court concluded that the teachers had “failed to demonstrate that the decision to terminate their employment was infected by the sort of bias that we have held to disqualify other decisionmakers as a matter of federal due process.” Id. at 496 [ 96 S.Ct. at 2316 ].

We also recognize that, under Horton-ville, a less than impartial decisionmaker may be tolerable if there are no contested issues of fact to be resolved by that decisionmaker. In Kendall v. Board of *1011 Education, 627 F.2d 1 (6th Cir.1980), this court held that a school board’s preter-mination grievance procedure was constitutionally inadequate because the teacher whose contract was terminated

“was compelled to appear before the same administrators who had investigated the incidents and recommended her dismissal. Since factfinding on the accusations was necessary, due process requires that the same administrators who investigated the matter not determine her guilt or innocence.” ******

[But] there is no construction of the facts of this case that could support the view that Williams was not too biased to give Duchesne a fair hearing. Even if he is accorded “the presumption of honesty and integrity in policymakers with decisionmaking power,” Hortonville, 426 U.S. at 497 [ 96 S.Ct. at 2316 ], the record clearly shows the existence of personal animosity between Williams and Du-chesne such that Williams’ subsequent impartiality was, at a minimum, suspect. Cf. Taylor v. Hays [Hayes], 418 U.S. 488, 501 [ 94 S.Ct. 2697, 2704 , 41 L.Ed.2d 897 ] (1974). This, taken together with Williams’ in-depth involvement in every stage of the proceedings, forbids the conclusion that Williams was a suitable hearing officer. Williams was involved in some of the incidents that formed the basis for Duchesne’s termination, and he was principally responsible for accusing, trying, and deciding the issues at Du-chesne’s hearing. Under the circumstances, the hearing provided to Du-chesne was constitutionally deficient.

Duchesne, No. 86-1017, slip op. at 11-14.

Thus, neither the district court’s disposi-tive opinion nor this court’s panel decision held that Duchesne’s due process rights were violated because he was not given a pretermination hearing before a “neutral decisionmaker” or an “impartial judge.” Both courts acknowledged that the hearing officer need not be totally impartial. The learned district judge held, instead, after carefully reviewing the undisputed facts of Mr. Williams’ relationship with Mr. Du-chesne, and particularly his role as “accuser, witness, and judge,” that “the evidence” is “that the plaintiff received an unfair and partial hearing,” and that “[i]n this situation, due process demands that someone other than [Mr. Williams] conduct the hearing.” (Emphasis added.) This court’s panel found that the record supported the district court’s conclusion that on the undisputed facts of this case, the hearing officer’s relationship to the plaintiff was so uniquely accusatory and partisan that he was “too biased to give Du-chesne a fair hearing.”

After careful consideration of the briefs and arguments upon rehearing en banc, I continue to be satisfied that the pretermin-ation hearing to which Mr. Duchesne was constitutionally entitled under the Due Process Clause, even if it be only a summary, informal, and peremptory “right of reply” must, nevertheless, be a hearing in which, to paraphrase my colleague, “the supervisory official is [not] so biased that the Loudermill ‘right of reply’ process is meaningless.” 1 (Emphasis added.) The uncontradicted record proof in this case is that it was.

Consequently, I must respectfully dissent.

. One searches the Supreme Court's Loudermill opinion in vain to find the constitutionally mandated pretermination hearing defined as a mere "right of reply." That characterization of the hearing is this court’s creation in its own Loudermill opinion, 721 F.2d at 560, and is conspicuously absent from the Supreme Court’s opinion.