Woodward v. Acc

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
WARREN WOODWARD, Appellant,
v.
ARIZONA CORPORATION COMMISSION, Appellee,
ARIZONA PUBLIC SERVICE COMPANY, Intervenor.
Nos. 1 CA-CC 17-0003
1 CA-CC 17-0004
(Consolidated)
FILED 12-11-2018
Arizona Corporation Commission
Nos. E-01345A-16-0036
E-01345A-16-0123
AFFIRMED
APPEARANCES
Warren Woodward, Sedona
Appellant
Arizona Corporation Commission, Legal Division, Phoenix
By Maureen A. Scott, Wesley C. Van Cleve, Naomi E. Davis,
Stephen J. Emedi
Counsel for Appellee, Arizona Corporation Commission
Pinnacle West Capital Corporation Law Department, Phoenix
By Thomas A. Loquvam, Thomas L. Mumaw, Melissa M. Krueger
Counsel for Intervenor, Arizona Public Service Company
WOODWARD v. ACC
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.
B R O W N, Judge:
¶1 This is a consolidated appeal of two Arizona Corporation
Commission decisions that together enact a settlement agreement
concerning Arizona Public Service Company’s (“APS”) 2016 rate case.
Appellant Warren Woodward, an intervenor in the rate case, challenges
Decision No. 76295’s resolution enacting section 19.1 of the agreement
(“choice of rate/90-day trial”) and Decision No. 76374, which enacts section
30 of the agreement (“AMI1 Opt-Out Program”). Because Woodward has
not demonstrated that the Commission’s decisions were unlawful,
unreasonable, or unsupported by substantial evidence, we affirm.
BACKGROUND
¶2 APS is a public service corporation within the meaning of
Article 15, Section 2, of the Arizona Constitution and is the largest provider
of electricity in Arizona. As a public service corporation, APS is regulated
by the Commission, which determines the rates APS can implement
through a proceeding called a rate case. See Ariz. Admin. Code (“A.A.C.”)
R14-2-103. These proceedings are complex and often take more than a year
to complete because they “attract many intervenors, require voluminous
and detailed filings, and involve multiple, lengthy hearings.” Residential
Util. Consumer Office v. Ariz. Corp. Comm’n, 240 Ariz. 108, 110, ¶ 6 (2016).
¶3 Woodward is one of many intervenors to the 2016 rate case,
which included various issues that were heavily litigated for over a year
until 29 of 39 parties signed the settlement agreement at issue in this case.
1 AMI stands for Automated Meter Infrastructure and refers to the use
of “smart meters,” which are utility meters that have “have a two-way
communication function between the utility company and the customer.”
Office of Envtl. Health, Ariz. Dep’t of Health Servs., Public Health Evaluation
of Radio Frequency Exposure from Electronic Meters 1 (2014).
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Decision of the Court
Woodward was involved in the settlement agreement negotiations but
opposed its final terms.
¶4 Whether the settlement agreement resulted in rates that were
just, reasonable, and in the public interest was the subject of a seven-day
evidentiary hearing before an administrative law judge (“ALJ”) of the
Commission’s Hearing Division. Pre-filed testimony was admitted as
evidence, and all 39 parties were permitted to submit direct and rebuttal
testimony related to the settlement agreement and closing briefs at the
hearing’s conclusion. After the hearing, the ALJ reviewed the evidence and
issued a recommended opinion and order (“ROO”) that addressed all the
disputed issues except the AMI Opt-Out Program, which was bifurcated
for a separate decision.
¶5 At an open meeting, the Commission discussed the ROO and
heard additional testimony before approving it, with several amendments,
by a four to one vote. Decision No. 76295 was issued shortly thereafter,
substantively adopting the ROO and concluding, in relevant part, that “the
rates, terms and conditions of the Settlement Agreement are just, fair, and
reasonable and in the public interest.” Woodward filed an application for
rehearing, which was denied by operation of law. See Ariz. Rev. Stat.
(“A.R.S.”) § 40–253(A) (“If the commission does not grant the application
[for rehearing] within twenty days, it is deemed denied.”). Woodward
timely appealed the decision pursuant to A.R.S. § 40–254.01.
¶6 At a subsequent open meeting, the Commission discussed the
ROO for the AMI Opt-Out Program and heard additional testimony before
approving it with no amendments, by a vote of four to one. The
Commission then issued Decision No. 76374, adopting the AMI Opt-Out
Program and determining that the settlement agreement was just,
reasonable, and in the public interest. Woodward filed an application for
rehearing, which was denied by operation of law, and timely appealed the
decision under § 40–254.01. We granted the Commission’s motion to
consolidate the two appeals and APS’s motion to intervene.
DISCUSSION
¶7 The Commission “is a constitutional body . . . ow[ing] its
existence to provisions in the [state’s] organic law.” Ethington v. Wright, 66
Ariz. 382, 389 (1948); see also Ariz. Const. art. 15, §§ 1–19. The Arizona
Constitution grants the Commission “full power to . . . prescribe just and
reasonable classifications to be used and just and reasonable rates and
charges to be made and collected, by public service corporations within the
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Decision of the Court
state for service rendered therein.” Ariz. Const. art. 15, § 3. When
exercising its constitutionally granted powers, the Commission has broad
discretion. See Residential Util. Consumer Office, 240 Ariz. at 111, ¶¶ 11–12
(citations omitted).
¶8 We review the constitutional and statutory challenges in this
case de novo. Id. at ¶ 10. When reviewing a rate-making decision we
“presume the Commission’s actions are constitutional, and we uphold
them unless they are arbitrary or an abuse of discretion.” Id. For factual
findings, we defer to the Commission unless presented with “a clear and
satisfactory showing that [an] order is unlawful or unreasonable.”2 A.R.S.
§ 40-254.01(A), (E). This standard requires the party opposing a decision to
“demonstrate, clearly and convincingly, that the Commission’s decision is
arbitrary, unlawful or unsupported by substantial evidence.” Freeport
Minerals Corp. v. Ariz. Corp. Comm’n, 244 Ariz. 409, 411, ¶ 6 (App. 2018)
(citation omitted). We review only those issues that were fairly presented
to the Commission in a timely application for rehearing. See A.R.S.
§ 40-253.3
2 We disagree with the Commission’s assertion that Woodward has
the burden of “show[ing] by clear and convincing evidence” that the
findings of fact are unlawful, unreasonable or unsupported by substantial
evidence. Although “clear and satisfactory” has been interpreted as
equivalent to “clear and convincing,” Consol. Water Utils., Ltd. v. Ariz. Corp
Comm’n, 178 Ariz. 478, 481 (App. 1993), under § 40-254.01(A) Woodward
must make a clear and convincing showing. To meet this standard, he must
provide (1) analysis of pertinent legal authorities sufficient to show the
Commission’s decisions are unlawful or unreasonable or (2) discussion of
the evidence, with supporting record citations, sufficient to demonstrate the
Commission’s decisions are not supported by substantial evidence.
Woodward is not allowed, much less required, to present evidence on
appeal. See Consol. Water Utils., 178 Ariz. at 481 (explaining that § 40-254.01
was adopted to make rate-case challenges much more efficient and that
they are to “conform, as nearly as possible, to the manner in which other
appeals are undertaken”).
3 Although Woodward’s appellate briefing does not comply with
Arizona Rule of Civil Appellate Procedure 13, his lack of compliance does
not prevent us from deciding the merits of the issues properly preserved in
his applications for rehearing and sufficiently developed on appeal.
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Decision of the Court
I. Decision 76295: Choice of Rate/90-Day Trial Period
¶9 Woodward argues that the Commission exceeded the bounds
of its prescribed power when it approved the choice of rate/90-day trial
period found in § 19.1 of the settlement agreement, which provides as
follows:
All customers may select R-Basic, R-Basic Large, TOU-E, R-2,
R-3, R-Tech or R-XS if they qualify until May l, 2018, except to
the extent grandfathered under other sections of this
Settlement Agreement.[4] Distributed Generation customers
will not be eligible for R-XS, R-Basic or R-Basic Large. After
May l, 2018, R-Basic Large will no longer be available to new
customers or customers who are on another rate. New
customers after May 1, 2018 may choose TOU-E, R-2, R-3 or if
they qualify, R-XS or R-Tech. After 90 days, new customers
may opt-out of their current rate and select R-Basic if they
qualify. Customers transitioning to R-Basic must stay on that
rate for at least 12 months.
¶10 Woodward asserts that § 19.1 must be set aside because
grandfathering the R-Basic Large rate plan and requiring new customers to
participate in the 90-day trial period constitute “facilitation of illegal
discrimination,” which is “both unlawful and unreasonable.”5 Woodward
correctly states that the Commission is constitutionally required to set “just
and reasonable” rates as well as rates that are not “discrimina[tory] in
charges, service, or facilities . . . between persons or places for rendering a
like and contemporaneous service.” Ariz. Const. art. 15, §§ 3, 12. However,
he has not made the requisite showings under either argument.
A. Just and Reasonable Rates
¶11 Just and reasonable rates are “fair to both consumers and
public service corporations,” Phelps Dodge Corp. v. Ariz. Elec. Power Coop.,
Inc., 207 Ariz. 95, 106, ¶ 30 (App. 2004) (citations omitted), because public
4 The Commission approved § 19.1, but changed “the sunset for R-
Basic Large” to September 1, 2018 because “there is sufficient evidence in
the record and it is in the public interest for existing customers to have
additional time to adequately consider the R-Basic Large plan.”
5 Woodward arguably did not preserve this argument in his
application for rehearing; we address it merely to clarify the meaning of
“just and reasonable.”
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WOODWARD v. ACC
Decision of the Court
service corporations are “entitled to a fair return on the fair value of [their]
propert[y] devoted to the public use,” Ariz. Corp. Comm’n v. Ariz. Water Co.,
85 Ariz. 198, 203 (1959) (citations omitted). In determining whether rates
are just and reasonable, we analyze the dollar amount of the rates as they
relate to the fair value of the public utility’s property. See Simms v. Round
Valley Light & Power Co., 80 Ariz. 145, 151 (1956) (“It is clear . . . that under
our constitution as interpreted by this court, the commission is required to
find the fair value of the company’s property and use such finding as a rate
base for the purpose of calculating what are just and reasonable rates.”).
Woodward’s argument does not challenge the dollar amount of the rates;
thus, we do not address whether the rates are “just and reasonable.”
B. Non-discriminatory Rates
¶12 Article 15, Section 12’s prohibition on rate discrimination is
applied to public service corporations in A.R.S. § 40-334.6 This statute
prohibits public service corporations from “mak[ing] or grant[ing] any
preference or advantage to any person or subject[ing] any person to any
prejudice or disadvantage,” in regards to its “rates, charges, services,
facilities or in any other respect.” § 40-334(A). The Commission is given
the power to “determine any question of fact arising under this section.”
§ 40-334(C).
¶13 Woodward first argues that APS must make R-Basic Large
available to—or take it away from—all of its residential customers because
“deny[ing] a rate plan to some residential customers while other residential
customers enjoy it is obvious illegal discrimination per A.R.S. § 40-334.A.”
In Town of Wickenburg v. Sabin, 68 Ariz. 75, 77 (1948), our supreme court
noted that “the law on discrimination as applied to public service
corporations generally is well-settled.” The court explained how a public
service corporation can avoid acting in a discriminatory manner:
‘The charges must be equal to all for the same service under
like circumstances. A public service corporation is impressed
with the obligation of furnishing its service to each patron at
the same price it makes to every other patron for the same or
6 The parties dispute whether the Commission can be found to have
violated § 40-334 by approving discriminatory rates. We conclude that the
Commission cannot per se violate this statute, but if its findings of fact are
challenged and proven unlawful, unreasonable, or unsupported by
substantial evidence, we have the authority to determine it has violated its
constitutional duty under Article 15, Section 12.
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Decision of the Court
substantially the same or similar service’ . . . ‘The common
law upon the subject is founded on public policy which
requires one engaged in a public calling to charge a
reasonable and uniform price to all persons for the same
service rendered under the same circumstances.’
Id. at 77–78 (quoting 4 Eugene McQuillin, Municipal Corporations § 1829 (2d
ed. 1943)). Relying on Wickenburg, this court has further described the non-
discrimination doctrine as the “obligation of a public service corporation to
provide impartial services and rates to all its customers similarly situated.”
Miller v. Salt River Valley Water Users’ Ass’n, 11 Ariz. App. 256, 260 (1970)
(citation omitted).
¶14 The record supports the Commission’s finding that APS is not
acting in a discriminatory manner by removing R-Basic Large from its list
of offerings. This conclusion would be different if APS were to offer new
and existing customers the option to choose R-Basic Large at a higher or
lower rate than current customers, but this is not the case. Here, new and
existing customers who have not chosen—or do not choose before the
sunset date—the R-Basic Large plan, are similarly situated with each other;
they are not similarly situated with current R-Basic Large customers. Thus,
§ 19.1 does not result in discriminatory services or rates between similarly
situated customers.
¶15 Woodward also asserts that the 90-day trial period makes or
grants a preference or advantage to existing customers in violation of
§ 40-344(A). New customers, however, will pay the same amount for their
rates as existing customers and will have access to all the same plans (unless
grandfathered before the end of their trial period). Furthermore,
Woodward acknowledges that even existing customers will be treated as
new customers if they open services at a new residence.
¶16 Finally, Woodward asks us to set aside § 19.1 because he and
another intervenor presented compelling evidence that is contrary to the
Commission’s determination. Our role is not to reweigh the evidence or
substitute our judgment for that of the Commission. See Freeport Minerals
Corp., 244 Ariz. at 417, ¶ 34. The Commission is entrusted with the
authority to render decisions regarding ratemaking after weighing the
credibility of the various witnesses and exhibits, and it “is the best-
equipped branch of government to do so.” Sierra Club--Grand Canyon
Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, 574, ¶ 19 (App. 2015).
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WOODWARD v. ACC
Decision of the Court
¶17 Overall, Woodward has not made a clear and convincing
showing that the Commission’s determination regarding § 19.1 was
unlawful, unreasonable, or unsupported by substantial evidence.
Therefore, we affirm its adoption in Decision 76295.
II. Decision 76374: AMI Opt-Out Program
¶18 The settlement agreement’s AMI Opt-Out Program allows
APS residential customers who do not want an AMI meter to “opt-out” and
have their electricity monitored by an analog or digital meter (requiring
traditional meter reading). This program was heavily litigated during the
evidentiary hearing and bifurcated for a separate decision by the ALJ.
Section 30 states as follows:
The AMI Opt-Out program will be approved as proposed by
APS except the fees will be changed to reflect an upfront fee
of $50 to change out a standard meter for a non-standard
meter and monthly fee of $5. See Service Schedule 1, attached
as Appendix M.
As we understand Woodward’s arguments, he asserts that Decision 76374
should be set aside because (1) the findings of facts are not supported by
evidence; (2) the ALJ should have considered newly discovered evidence;
and (3) the decision is fatally flawed because the ALJ was biased against
him.
A. Findings of Fact – Lack of Evidence
¶19 Woodward argues that because findings of fact numbers 349
through 354 rely on evidence and testimony presented by other parties to
the proceedings, the findings constitute “baseless opinions” that are
“completely unsubstantiated by fact, by competent evidence or witnesses.”7
He contends he “presented [the] probative evidence” that should determine
the outcome of this case because the other parties’ testimony and exhibits
are not evidence.
¶20 These factual findings state in relevant part:
349. The evidence presented does not support allegations
that AMI meters pose a risk to public safety or health beyond
7 Woodward references finding of fact number 348 in his appellate
briefing, but he did not adequately preserve this contention in his
application for rehearing. See A.R.S. § 40-253.
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Decision of the Court
those risks inherent to the delivery of electricity to homes and
businesses, and those inherent to the use and enjoyment of
modern electrical appliances and conveniences in those
homes and businesses.
350. APS’s AMI meters comply with the applicable safety
standards.
351. Allegations were made regarding . . . risks in
association with the use of AMI meters. The evidence
presented does not support those claims.
352. Section 30 and Schedule M of the Settlement
Agreement provide a means for . . . customers who do not
wish to receive service with APS’s standard AMI meter, for
whatever reason, to request a non-AMI meter for a one-time
installation fee and a monthly fee, both of which are cost-
based.
353. The evidence demonstrates that the fees proposed . . .
are reasonable and appropriate, and that the requirements for
participation proposed . . . are also reasonable and
appropriate.
354. The record in this proceeding does not support
allegations that the proposed fees or requirements for
participation . . . are discriminatory.
¶21 Broadly speaking, evidence is anything a party relies upon to
prove its position in a legal proceeding. See Rev. Ariz. Jury Instr.
Preliminary 3 (4th ed. 2013) (defining “evidence” as the “testimony of
witnesses, any documents and other things received in evidence as exhibits,
and any facts stipulated, or agreed to, by the parties or which [the jury is]
instructed to accept”); see also A.A.C. R14-3-109 (describing various forms
of evidence parties may rely on at Commission hearings). The general test
for admissibility is not whether something is or is not evidence, but whether
it is relevant to the case. See Ariz. R. Evid. 401, 402; Hawkins v. Allstate Ins.
Co., 152 Ariz. 490, 496 (1987) (explaining that relevancy is a two-part test
requiring that the evidence relate to a consequential fact placed at issue
from “the pleadings and substantive law” and “alter the [fact’s] probability,
not prove or disprove [its] existence”).
¶22 Here, the documentation properly submitted to the ALJ
during these proceedings and the live testimony of several witnesses
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(including Woodward) constitute the evidence the ALJ was tasked with
evaluating, and, issuing findings related thereto. The depth to which the
ALJ considered every piece of evidence is not pertinent on review because
we will uphold the factual findings unless the party opposing them clearly
and convincingly demonstrates that the findings are unlawful,
unreasonable, or unsupported by substantial evidence. See Litchfield Park
Serv. Co., 178 Ariz. at 434. To the extent Woodward argues his evidence is
more probative, we reiterate that we do not re-weigh the evidence that was
presented to the Commission or substitute its judgment with our own. See
supra ¶ 16.
¶23 Woodward also argues the findings of fact violate A.R.S.
§ 41-1063 because each finding of fact does not analyze the evidence or state
why the ALJ found it more persuasive. Section 41-1063 applies to
“contested cases,” which exempts rate-making proceedings conducted
under Article 15 of the Constitution. A.R.S. § 41-1001(5). Even so, the ALJ’s
findings sufficiently allow us to discern how she reached her conclusions
because the ROO discussed the positions of the parties and included
references to the hearing’s transcripts and the parties’ briefs. Cf. Shelby Sch.
v. Ariz. State Bd. of Educ., 192 Ariz. 156, 163, ¶ 21 (App. 1998) (explaining
how even when § 41-1063 applies “[t]he findings need not be detailed nor
in any particular form, though the reviewing court must be able to discern
how the agency reached its conclusion”). Thus, Woodward has not
demonstrated that the findings of fact are unlawful, unreasonable, or
unsupported by substantial evidence.
B. Findings of Fact: Miscellaneous
¶24 Woodward makes sub-arguments regarding why some of the
findings of fact are unsupported. We address these arguments to the extent
we understand them to pose questions that are not contingent on us
re-weighing the evidence or substituting our judgment for that of the
Commission.
¶25 In No. 349, the Commission found that AMI meters are not
likely to pose a risk beyond those inherent to the delivery, use, and
enjoyment of electricity in homes and businesses. Woodward argues the
Commission has “facilitated, and is complicit in, APS’s violation” of A.R.S.
§ 40-361(B), which states that “[e]very public service corporation shall
furnish and maintain such service, equipment and facilities as will promote
the safety, health, comfort and convenience of its patrons.” Woodward
seems to suggest that any service, equipment, or facility that does not
actively enhance the health of APS’s customers is violative of this statute.
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However, Woodward does not cite any legal authority for this
interpretation, and thus he has not clearly and convincingly demonstrated
No. 349 is unlawful, unreasonable, or unsupported by substantial evidence.
¶26 Regarding No. 351, Woodward argues it violates the
Commission’s earlier decision (Decision 75047) that states the rate case
should consider “issues that may surround smart meters.” Specifically,
Woodward asserts that Decision 76374 does not address the following: (1)
the possibility that APS is trespassing and stealing customer property when
it gathers a customer’s data; (2) the inaccuracy of smart meter data; and (3)
the damage smart meters do to household appliances. Contrary to
Woodward’s assertions, the record indicates the Commission heard
testimony on these issues and discussed them in the ROO when it outlined
Woodward’s arguments. Furthermore, Decision 76374 specifically states,
“Pursuant to Commission Decision No. 75047 . . . issues related to APS’s
Proposed Automated Meter Opt-Out Service Schedule were addressed in
this proceeding.” Therefore, we reject Woodward’s assertion that the
Commission failed to comply with Decision 75047 because it is within the
Commission’s discretion to interpret the requirements of a prior order
unless that interpretation is clearly erroneous. See Grand Canyon Trust v.
Ariz. Corp. Comm’n, 210 Ariz. 30, 35–36, ¶ 20 (App. 2005) (citations omitted).
¶27 As for No. 352, Woodward asserts the finding of fact is
misleading because “not just any APS customer can refuse a ‘smart’ meter,”
thus “[m]any APS customers who would like to refuse a ‘smart’ meter are
unnecessarily discriminated against.” Woodward’s unsupported allegation
does not clearly and convincingly demonstrate that APS is acting in a
discriminatory manner because impermissible discrimination requires that
APS provide different services to similarly situated customers or charge
them different rates for the same or substantially the same service. See supra
¶¶ 13–14. Here, APS is merely restricting solar and commercial customers
from participating in the AMI Opt-Out Program. This is not discriminatory
because solar and commercial customers are not similarly situated with
respect to residential customers who can participate in the AMI Opt-Out
Program.
¶28 Finally, Woodward argues that No. 353 is a “fantasy” because
“[t]he requirements for participation are highly discriminatory.” The
requirements Woodward takes issue with are found in APS’s Service
Schedule 1, under the label “8.5 Discontinuation of Non-Standard
Metering.” In that document, APS lists five conditions that allow APS to
replace a non-standard meter with a standard meter based on health and
safety concerns, or misuse of a meter. Applying these five conditions to
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customers who already have an AMI meter is illogical because the smart
meters are read remotely and automatically alert APS to meter misuse or
tampering; therefore, the five conditions only apply to customers who
participate in the AMI Opt-Out Program.
¶29 In sum, we conclude that Woodward has not clearly and
convincingly demonstrated the findings of fact are unlawful, unreasonable,
or unsupported by substantial evidence.
C. New Evidence
¶30 Woodward asserts that the ALJ should have considered an
exhibit he attached to his initial closing brief and two other exhibits he
attached to his reply closing brief as admissible evidence. Although the ALJ
took notice of these exhibits, she found they “do not constitute evidence
subject to cross-examination of a sponsoring witness, and cannot be
accorded any weight” because “[t]he purpose of legal briefs is not to enter
new evidence into the record, but to allow parties an opportunity to set
forth their legal arguments on evidence presented in a proceeding.”
¶31 Hearings before the Commission are governed by A.R.S.
§§ 40-241 to -56 and “by rules of practice and procedure adopted by the
[C]ommission.” A.R.S. § 40-243; see A.A.C. R14-3-101 to -13. These rules
provide the following guidance: “Once a party has rested his case he shall
not be allowed to introduce further evidence without consent of the
presiding officer.” A.A.C. R14-3-109(G). Woodward rested his case on May
1, 2017, and after his testimony was finished, he responded affirmatively to
the ALJ’s question regarding whether he had been given a “full and fair
opportunity to present [his] case.” Accordingly, the ALJ acted within her
discretion in declining to allow the introduction of new evidence after the
hearing was completed. Cf. Higgins v. Indus. Comm’n, 16 Ariz. App. 136,
138–39 (1971) (“[E]vidence submitted after a formal hearing is not
admissible” because it must be “presented in sufficient time to allow for
cross-examination at the hearing.”).
D. Judicial Bias
¶32 Despite answering in the affirmative when the ALJ asked if
he “had a full and fair opportunity” to present his case, Woodward now
argues that the decision is “fatally flawed” because the ALJ exercised
“[g]ross judicial bias in favor of APS and prejudice against [Woodward].”
Among his allegations, Woodward asserts that the ALJ
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(1) “did the work of the APS lawyers” when she stopped a
line of questioning and told him it was argumentative, despite
no APS lawyer objecting;
(2) turned due process on its head by telling him “a data
request would have gotten you those numbers prior to the
hearing. Just saying.”; and
(3) “took it upon herself to include in her ROO” APS
evidence—the Arizona Department of Health Services
study—even though he “totally discredit[ed]” the evidence
with his own.
¶33 Woodward has failed to rebut the presumption that a hearing
officer is “fair and can be disqualified only upon a showing of actual bias.”
Berenter v. Gallinger, 173 Ariz. 75, 82 (App. 1992); Jenners v. Indus. Comm’n,
16 Ariz. App. 81, 83 (1971) (explaining that absent “an applicable statute
. . . or administrative rule” actual bias is the standard in an administrative
hearing). Actual bias is shown by “demonstrat[ing] that the mind of the
decision maker is ‘irrevocably closed’ on the particular issues being
decided.” Hourani v. Benson Hosp., 211 Ariz. 427, 434, ¶ 23 (App. 2005)
(citation omitted). To meet this standard, it must be clear that “any bias or
predetermination of the facts is based on an ‘extrajudicial source’ that
results in a decision based on something” outside of the hearing. Id.
(citations omitted). None of Woodward’s assertions are based on matters
from outside the hearing process nor do they provide any showing that the
ALJ’s mind was irrevocably closed in deciding the issues before her. Thus,
Woodward has not established judicial bias.
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CONCLUSION
¶34 Because Woodward has not clearly and convincingly
demonstrated that the Commission’s determinations regarding § 19.1 in
Decision 76295 and § 30 in Decision 76374 are unlawful, unreasonable, or
unsupported by substantial evidence, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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