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Frasceli v. State Dept. of Revenue12/13/1988
case persuasive and hold MAPA officials rendering decisions to the same standard of conduct
Highbarger was a wrongful death case arising out of a single-car accident. The trial judge was considering a formal motion for involuntary dismissal and in aid of his determination viewed the scene of the accident. The Idaho Court found:
"A judge trying a case without a jury may not properly view premises without notice to the parties or use the result of his inspection in weighing the testimony of a witness. Citing Jones on Evidence, Section 462, at 857 (5th Ed.)."
Prior notice to the parties was the focus in Highbarger. It insures that parties know of the viewing in order to object to it if they deem it inappropriate under the circumstances, and notice further allows the parties to be present to assure that the court does not view the incorrect object or premises. As pointed out by the appellants in Highbarger, they had absolutely no way of knowing whether the trial judge actually found the accident site
We find that prior notice for a viewing is the general rule See, 18 A.L.R.2d 552, Section 4 at 562:
"Regarding administrative decision or finding based on evidence secured outside of the hearing and without the presence of interested party or counsel:
"`Even though an administrative authority has the statutory power to make independent investigations, it is improper for it to base a decision upon findings or facts so obtained, unless such evidence is introduced at a hearing or otherwise brought to the knowledge of the interested parties prior to decision, with opportunity to explain and rebut.'"
Chi Chi's owner argues that she had no way of knowing that the Director based his reversal and additional findings on facts or data obtained through his viewing. More importantly to the Court, we have no way to be certain that he did not
We cannot comprehend the extent or the impact of the Director's inspection because there is no record of it. Lack of prior notice coupled with lack of any documentation is fatal to an ordinarily permissible inspection. When this type of conduct occurs under a MAPA proceeding, it violates certain other safeguards built in by statute: the right to respond and present evidence and argument on all relevant issues (Section 2-4-612(1), MCA), and the right to conduct a cross-examination sufficient for the full and true disclosure of facts (Section 2-4-612(5), MCA)
We agree with the trial court's reasoning and rulings on these issues
II. Reinstatement of the Proposed Order
Chi Chi's argues that, even if the reversal of the Director's order is proper, it was an abuse of discretion for the trial judge to order reinstatement of the proposed order. We agree Ordering the adoption of the hearing examiner's proposal simply is not an alternative authorized by statute
Thus, we remand to the agency on this issue for a final determination. The agency will have an objective and detached officer review the record, disregarding the Director's viewings If the officer finds it necessary to supplement the record, the officer may take additional testimony or conduct a proper viewing with prior notice and a full record
We affirm the District Court order insofar as it vacates the final agency decision and remand to the DOR for proceedings consistent with this opinion
MR. JUSTICES SHEEHY, HARRISON, WEBER, GULBRANDSON, HUNT and McDONOUGH concur
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