APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The sole issue in this case is whether the appellant, whose license to operate a tavern was revoked after a hearing, was denied due process because he was denied access to the report of the hearing examiner. We find no due process violation and affirm.
Ramos was charged by the Chicago Local Liquor Control Commission with aggravated battery and possession of an unregistered gun on licensed premises. There was a lengthy evidentiary hearing before deputy commissioner Handy. After this hearing, the mayor, acting as Local Liquor Control Commissioner (Commissioner) revoked Ramos' license. Ramos appealed to the local License Appeal Commission. One of his contentions there was that Handy's report, if any, to the Commissioner should be put in the record. This request was denied and the order of revocation affirmed.
Ramos then filed a complaint in the circuit court, alleging on information and belief that Handy had, after hearing all of the evidence, recommended disposition other than revocation and seeking production of the specific finding or recommendation. The circuit court first granted this motion, then, on rehearing, denied it. Ramos then sought unsuccessfully to subpoena Handy. After arguments the circuit court affirmed the license revocation.
The appellant has not set forth any of the testimony produced at the hearing, nor has the appellant contended on appeal to this court that that testimony does not support the Commissioner's determination. What he does contend is the circuit court deprived him of a full and complete hearing on administrative review, by denying him the opportunity to make an evidentiary showing, by way of discovery or by way of testimony, that the trier of fact had judged credibility in his favor.
To determine whether the appellant has been denied due process, it is essential to consider the relationship between the hearing examiner and the Commissioner. It is not true, as appellant contends, that questions of the credibility of the witnesses and sufficiency of the evidence can only be determined by the hearing officer since only he had the opportunity to observe the witnesses, to hear them and to question them. While it is true that "[t]he one who decides must hear" (Morgan v. United States (1936), 298 U.S. 468, 481-82, 80 L.Ed. 1288, 1295, 56 S.Ct. 906, 912), that court continued:
"This necessary rule does not preclude practicable administrative procedure in obtaining the aid of assistants in the department. Assistants may prosecute inquiries. Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates. * * *. But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them."
As the Illinois Supreme Court recently explained in Homefinders, Inc. v. City of Evanston (1976), 65 Ill.2d 115, 128-29, 357 N.E.2d 785, 791-92:
"Morgan and other Federal decisions have consistently recognized that, in the absence of statutory provisions to the contrary, it is not necessary that testimony in administrative proceedings be taken before the same officers who have the ultimate decision-making authority. (E.g., Anniston Manufacturing Co. v. Davis (1937), 301 U.S. 337, 81 L.Ed. 1143, 57 S.Ct. 816; Quon Quon Poy v. Johnson (1927), 273 U.S. 352, 71 L.Ed. 680, 47 S.Ct. 346; Estate of Varian v. Commissioner (9th Cir. 1968), 396 F.2d 753; NLRB v. Stocker Mfg. Co. (3d Cir. 1950), 185 F.2d 451; see also Annot., Administrative decision by officer not present when evidence was taken, 18 A.L.R.2d 606 (1951).) They indicate to the contrary that administrative proceedings may be conducted by hearing officers who refer the case for final determination to a board which has not `heard' the evidence in person. The requirements of due process are met if the decision-making board considers the evidence contained in the report of proceedings before the hearing officer and bases its determinations thereon. (Morgan; Anniston Manufacturing Co.; Estate of Varian; Stocker Mfg. Co.; see also 2 Davis, Administrative Law sec. 11.02 (1958); 2 Am.Jur.2d Administrative Law sec. 437 (1962).) A substantial majority of State courts> which have considered the question have come to the same conclusion. (E.g., Bertch v. Social Welfare Department (1955), 45 Cal.2d 524, 289 P.2d 485; City of Derby v. Water Resources Com. (1961), 148 Conn. 584, 172 A.2d 907; Hinrichs v. Iowa State Highway Com. (1967), 260 Iowa 1115, 152 N.W.2d 248; Clairborne v. Coffeyville Memorial Hospital (1973), 212 Kan. 315, 510 P.2d 1200; Younkin v. Boltz (1966), 241 Md. 339, 216 A.2d 714; Napuche v. Liquor Control Com. (1953), 336 Mich. 398, 58 N.W.2d 118; Foley Brothers, Inc. v. Commonwealth of Pennsylvania Department of Highways (1960), 400 Pa. 584, 163 A.2d 80; Tecumseh Products Co. v. Wisconsin Employment Relations Board (1964), 23 Wis.2d 118, 126 N.W.2d 520; contra, McAlpine v. Garfield Water Com. (1947), 135 N.J.L. 497, 52 A.2d 759.) We are in accord with the majority view and conclude that the requirements of procedural due process would be met under the Evanston Fair Housing Ordinance if those members who were not personally present at the hearings base their determination of penalties on the evidence contained in the transcript of such proceedings."
It must be acknowledged that the issue which the absent members were allowed to decide in Homefinders concerned the appropriate penalty to be imposed (by ordinance absent members could not participate in the determination of guilt); thus, the question was one of policy and not of credibility which had already been determined by those members present at the hearing. It has been suggested that a different rule is applicable where the issue is one of credibility. Thus, as the court in Radaca v. United States Smelting, Refining & Mining Co. (1945), 62 Ariz. 464, 470, 158 P.2d 540, 542, remarked:
"* * * it might be well to observe that a fair and full hearing to litigants under the due process clause of the constitution requires that the examiner or referee who hears the evidence, where there is a sharp conflict in the testimony, must in some way participate in the decision or give his conclusions and impressions of such testimony by either written or oral reports. The basis for this is that where weight and credibility is to be given to testimony of witnesses, the litigants are entitled to have the person who conducts the hearing and sees the witnesses to at least have his conclusions and impressions reported to the fact-finding body. If a situation should arise where it could not be assumed that the observations and conclusions of the examiner had been communicated to the commission, and the evidence was in such conflict that the weight and credibility to be given testimony of the various witnesses was the determining factor, the due process rule relating to hearings might have to be applied."
Likewise, the court in Crow v. Industrial Com. (1943), 104 Utah 333, 337, 140 P.2d 321, 322, ruled that:
"Where there is a conflict in the testimony, and the weight and credibility to be given testimony of the various witnesses is the determining factor, in order to accord a `full hearing' to which all litigants are entitled, the person who conducts the hearing, hears the testimony, and sees the witnesses while testifying, whether a member of the board, or an examiner or referee, must either participate in the decision, or where, at the time the decision is rendered, he has severed his connections with the board, commission or fact finding body, the record must show affirmatively that the one who finds the facts had access to the benefit of his findings, conclusions and impressions of such testimony, by either written or oral reports thereof. This does not necessarily require that all of the ...