Unconstitutionally Listed for Life?

By Sierra Brown.

Case Study: Phillip B. v. McKay

In 2018, Phillip B. worked as a caregiver at New Horizons, a group home for male children. On July 6, 2018, a fifteen-year-old resident of the home called the Arizona Department of Child Safety (“DCS”), alleging that Phillip pressed his elbow against the throat of a thirteen-year-old resident, G.C., until he “made a gasping sound.”

During its investigation, DCS interviewed two residents that were present during the incident, including the teen who called DCS. They provided similar accounts, explaining that G.C. was unable to breath when appellant forcibly pressed on his neck. However, G.C. told DCS that appellant had grabbed his shirt by the neck. DCS also interviewed appellant and another caregiver who was present at the scene. They consistently denied that appellant “placed his forearm on [G.C.]’s neck and restricted [G.C.]’s breathing.” After its investigation, DCS concluded that Phillip “placed [the teen] in an inappropriate restraint by grabbing the child by the neck of his shirt and placing his forearm against the child’s neck, during which time the child’s face turned red and he was unable to breath.” Accordingly, DCS held that “probable cause” existed that child abuse occurred.

On appeal, an administrative law judge (“ALJ”) heard testimony from the residents of the home as well as from Phillip and the other adult witness. The New Horizons Program Coordinator also testified that G.C. “never told him that he could not breathe or that [Phillip] put his body on him.” Finding that the testimony provided by Phillip and the two other New Horizon staff members was “credible” while the children’s’ statements were inconsistent, the ALJ decided that there was not probable cause for a finding of abuse.

However, once an agency receives an ALJ’s decision, “the head of the agency, executive director, board or commission may review the decision and accept, reject[,] or modify it.” This decision will then serve as the “final administrative decision.”

Indeed, Gregory McKay, director of DCS, rejected the ALJ’s findings. He disagreed that that the staff members’ testimony was credible. Thus, he ordered that the abuse claim be shown as “substantiated” and that Phillip be listed as a child abuser for twenty-five years.

The New Civil Liberties Alliance (“NCLA”), a Washington D.C. nonprofit critical of the administrative state, filed a Motion for Stay of an Agency Decision on August 30, 2019, seeking to halt McKay’s order that Phillip register as a child abuser. The NCLA also claimed that A.R.S. §§ 41-1092.08(B) and (F) violate an individual’s due process rights and should be rendered unconstitutional.

Unconstitutional Adjudication

Certainly, Phillip’s reputation will suffer irreparable harm, regardless of the Superior Court’s decision. This raises the question whether it is constitutional for agencies to deprive people of liberty for twenty-five years, or even for life, by requiring their listing on a notorious registry . The U.S. Constitution guarantees that “[n]o one shall be . . . deprived of life, liberty, or property, without due process of law . . . .” And the Supreme Court has held that agencies may only adjudicate cases involving public rights. Under Justice Thomas’s framework of the public rights doctrine, agencies must not adjudicate decisions involving private rights.

Justice Thomas’s perspective suggests that only courts are constitutionally empowered to decide cases like Phillip’s. Indeed, listing a person as a child abuser, sex offender, methamphetamine user, and the like, for any period, is a substantial encroachment of a person’s individual and private rights. This is significantly distinguished from ordinary public right like government-provided welfare entitlements. In fact, is there anything more private than your protection from a government-imposed stigma?

Thus, under the public rights doctrine, DCS should never have been permitted to impose a twenty-five-year registration requirement on Phillips. Indeed, no agency can constitutionally adjudicate matters so unquestionably involving peoples’ private rights and then deprive them of liberty.

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Sierra Brown

J.D. Candidate, 2021

Sierra is a 2L Staff Writer and an O’Connor Honors Fellow from Arizona. She graduated summa cum laude from the Walter Cronkite School of Journalism at ASU in 2015 and worked for three years at ASU Enterprise Partners, helping raise revenue for the university. She enjoys playing board games with her husband, brewing the perfect cup of tea, and hosting a women’s book club.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.