State, ex rel. Human Services Dept. v. Gomez

• Decision Date: 28 December 1982
• Docket Number: No. 14541,14541
• Citation: 657 P.2d 117,99 N.M. 261,1982 NMSC 153
• Parties: STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner, v. Liborio GOMEZ, Respondent.
• Court: New Mexico Supreme Court

Page 117

657 P.2d 117

99 N.M. 261

STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner, v.Liborio GOMEZ, Respondent.

No. 14541.

Supreme Court of New Mexico.

Dec. 28, 1982.

Rehearing Denied Jan. 21, 1983.

[99 N.M. 262] Charles McCormack, Southern New Mexico Legal Services, Clovis, for respondent.

Jeff Bingaman, Atty. Gen., Richard Shapiro, Asst. Atty. Gen., Santa Fe, for petitioner.

UPON CERTIORARI

PAYNE, Chief Justice.

This Court granted certiorari in State of New Mexico v. Gomez, in which the Court of Appeals majority opinion ruled to continue welfare benefits that Gomez had been receiving under AFDC (Aid to Families with Dependent Children).Specifically, the court held that Gomez was deprived of due process because his AFDC termination hearing was conducted by telephone and not in the presence of a hearing officer who could observe his demeanor.Judge Wood dissented from the majority opinion holding that Gomez' benefits should be terminated and outlined the reasons.With the exception of minor procedural questions, this case primarily dealt with the issue of whether telephonic hearings in AFDC termination proceedings violate due process.We adopt the dissenting opinion authored by Judge Wood of the Court of Appeals, thereby upholding the constitutionality of the telephonic hearings.

IT IS SO ORDERED.

FEDERICI, RIORDAN and STOWERS, JJ., concur.

SOSA, Senior Justice, respectfully dissenting and concurring with the Court of Appeals' majority opinion.

OPINION

SUTIN, Judge.

Gomez appeals a Fair Hearing Decision of the Human Services Department.We reverse.

Gomez' AFDC benefits were terminated as a result of a telephonic hearing conducted by the hearing officer and his report to HSD.Prior to the hearing, Gomez, by mail, stated:

We again insist that the requested hearing must be held in person to satisfy due process requirements since the decision clearly depends on Mr. Gomez' credibility, which cannot be judged over the telephone * * *.

In response, the hearing officer stated:

During the Pilot Project testing the use of telephone conferences in Fair Hearings, one of the requisites of the Pilot Model was that a client might refuse to consent to a telephone hearing.However, based on the results of the Project and limitations imposed by time and the budget, the Department has designated certain counties where Fair Hearing will be held only by telephone * * *.

I have accordingly scheduled a hearing for your client for November 10, 1981 at 10:00 A.M. * * *.

On the morning of the hearing, the hearing officer, by telephone, read both letters into the record.Gomez made it clear on the record that he was still in opposition to the telephone hearing.The hearing officer proceeded with the telephonic hearing.

The hearing officer has the power of "examining witnesses."Section 27-3-3(C),N.M.S.A.1978(1982 Repl.Pamph.).The examination of a witness consists of the series of questions put to him by the hearing officer for the purpose of bringing before him the knowledge which the witness has of the fact and matters in dispute, or of probing and sifting his evidence previously given.See, Black's Law Dictionary(Rev. 4th Ed.1968)p. 664.In a telephonic hearing, a hearing officer can examine witnesses but cannot observe them.A telephonic television hearing would afford a public officer the opportunity to observe the demeanor of a witness.

Black's Law Dictionary(Rev. 4th Ed.1968)p. 517 defines "Demeanor":

As respects a witness or other person, relates to physical appearance.[Citation Omitted.]It embraces such facts as the tone of voice in which a witness' statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air of candor or seeming levity.[Citation Omitted.]

" 'The tongue of the witness,' it has been said, 'is not the only organ for conveying testimony.' "Frank, Law and The Modern Mind, p. 109(1936).

"Demeanor evidence may be a great weight in determining who is telling the truth."State v. Engstrom, 226 Minn. 301, 32 N.W.2d 553, 559(1948).

The failure of a hearing officer or trial examiner to observe the demeanor of witnesses denies a party due process of law.S. Buchsbaum & Co. v. Federal Trade Commission, 153 F.2d 85(7th Cir.1946).Supplemental opinion, 160 F.2d 121(1947);U.S. v. Raddatz, 592 F.2d 976(7th Cir.1979);Smith v. Dental Products Co., 168 F.2d 516(7th Cir.1948);Shawley v. Industrial Commission, 16 Wis.2d 535, 114 N.W.2d 872(1962);Trzebiatowski v. Jerome, 24 Ill.2d 24, 179 N.E.2d 622(1962).

Buchsbaum involved a hearing before the Federal Trade Commission based upon testimony obtained by one trial examiner who died.A second trial examiner completed the taking of the testimony, closed the case and made his report to the commission.The court said:

Indeed, under those authorities the Commission should disregard the finding of the Examiner if he had not complied with the rule of confrontation, and that is the precise question which confronts us.Congress has authorized the appointment of Examiners in such cases and they are the eyes and ears of the Commission.There is no complaint as to this delegated power, but it certainly cannot be said that the appointment would free the Examiner from the duty of observing the demeanor of witnesses, for this would amount to a lack of due process to which petitioner is entitled.[Id. 87.]

In Smith, the hearing officer was a master who died before making any finding or report.A transcript of the evidence was lodged with the district judge upon which a final judgment was entered.The court followed Buchsbaum.The Smith court said:

The reason for the rule is applicable here; the deciding officer, whether administrative in character or judicial, has a real function to perform in due process.The defect is one going to the right of the parties to have a decision from the agency having jurisdiction upon the merits upon testimony submitted by witnesses whom the trial tribunal has seen and heard.[Id. 519.].

As Raddatz said:

Our reading of the record convinces us of the wisdom of the traditional practice.The record here does not reveal a pattern of facts that exposes the defendant's testimony as wholly incredible.Thus the truth cannot be derived from this written record without an intolerably high margin of error--a margin of error that time-honored tradition teaches can be substantially reduced by simply requiring the trier of fact to hear and observe the witnesses.[Id. 983-4.]

Gomez was heard but not seen.He was denied due process of law.

Judge Wood points out in his dissent that "demeanor" of a witness is not an aspect of the constitutional right of confrontation.We agree.The Confrontation Clause of the Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."Its primary object is to compel an adverse witness, not an accused, to stand face to face with the jury in order that they may look at him and judge by his demeanor whether he is worthy of belief.But this rule must occasionally give way to considerations of public policy and the necessities of the case."The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused."Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409(1895).A witness not present at trial should not allow an accused to go scot free when the witness' former testimony is available.The rights of the public demand it.Therefore, the demeanor of the witness is only an incidental benefit of the accused.

The Confrontation Clause does not involve the demeanor of an accused who takes the witness stand.A jury would not be allowed to sit in a jury box outside the court room and listen by telephone to the accused's testimony.Under due process of law, the demeanor of an accused is an essential ingredient in the determination of his guilt or innocence.

Judge Wood relies upon Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287(1970)andMathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18(1976).In each of these cases, no evidentiary hearing was held prior to termination of public assistance or disability benefit payments to a recipient.The recipient had not testified.The demeanor of the recipient was not an issue.The question for decision was whether the Due Process Clause of the Fifth Amendment required that the recipient be afforded an opportunity for an evidentiary hearing before the termination of social security public assistance or disability benefit payments.Goldberg states that the recipient may request a post-termination "fair hearing", that

[t]his is a proceeding before an independent state hearing officer at which the recipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing.If the recipient prevails at the "fair hearing"he is paid all funds erroneously withheld.[397 U.S. 259-260, 90 S.Ct. at 1016.]

The instant case is involved with a post termination "fair hearing" procedure, not with whether a recipient should be afforded an evidentiary hearing before termination of benefits.Goldberg and Mathews have no bearing upon the due process issue in the case before us.

Before the close of the case, Gomez requested that the record be kept open for 10 days to allow the submission of a doctor's report concerning the re-examination of Gomez before the hearings.The hearing officer granted the request.The hearing was adjourned.The report was filed on December 4, 1981, and...