COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Humphr eys and Senior Judge Fitzpatrick Argued at Alexandria, Virginia

MARY HALEY MEMORANDUM OPINION * BY v. Record No. 0014-06-4 J UDGE ROBERT J. HUMPHREYS OCTOBER 3, 2006 COMMONWEALTH OF VIRGINIA, VIRGINIA REAL ESTATE APPRAISER BOARD

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Dennis J. Smith, Judge John W. Thyden (Thyden, Gr oss & Callahan, on briefs), for appellant. Eric A. Gregory, Assistant Atto rney General (Rober t F. McDonnell, Attorney General; James W. Hopper, Senior Assistant Attorney General, on brief), for appellee.

Mary Haley (“Haley”) appeals the trial court’ s dismissal, with prej udice, of her petition for appeal regarding the Virginia Real Estate Appraiser Board’s (“Bo ard”) revocation of her appraiser’s license. Specificall y, Haley contends that “she was not afforded due process” by the

Board and that the Board’s decision was not based upon “clear and convincing evidence,” as required to revoke her license. 1 For the following reasons, we affirm the judgment below.

* Pursuant to Code § 17.1-413, this opinion is not designated for publ ication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.

1 Haley phrases her second question presented as follows: “Was the decision of the Real Estate Appraiser Board arbitr ary and capricious?” The Commo nwealth phrases the question presented as follows: “Was the Real Estate Appraiser Board’s decision based upon substantial evidence?” The Commonwealth argues, on brief, that the second question presented, as phrased by Haley, does not conform to the specific objecti on noted on the circuit c ourt’s final order. Thus, the Commonwealth contends that it is no t properly preserved for appeal. However, when read in conjunction with one another, we find that the question presented is, in essence, a sufficiency of the evidence argument. Thus, we find that it is properly before this Court.- 2 - ANALYSIS In accordance with familiar prin ciples of appellate review, “we review the facts in the light most favorable to sustaining the [Board]’s action,” Atkinson v. Virg inia Alcohol Beverage Control Comm’n , 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985), and take due account of the presump tion of official regularity, the experience and specialized comp etence of the agency, and the purposes of the basic law under wh ich the agency has acted, Code § 2.2-4027. Crutchfield v. State Water Contro l Bd., Dep’t of Envtl. Quality , 45 Va. App. 546, 555, 612 S.E.2d 249, 254 (2005). When appealing an agency d ecision to the circuit court, “the burden is upon the appealing party to demonstrate error.” Carter v. Gordon , 28 Va. App. 133, 141, 502 S.E.2d 697, 700-01 (1998). The judicial review of that decision is limited to determining “whether the agency acted in accordance with law,” “whether the agency made a procedural error which was not harmless error,” and “wheth er the agency had suffi cient evidential support for its findings of fact.” Crutchfield , 45 Va. App. at 553, 612 S.E.2d at 253; Johnston-Willis,

Ltd. v. Kenle y, 6 Va. App. 231, 242, 369 S.E. 2d 1, 7 (1998).

A. Due Process Although we generally give great deference to an agency decision, “[i]f the issue falls outside the area generally entrusted to the agency, and is one in which the courts have a special competence, i.e., the common law or constitutional la w, there is little reason for the judiciary to defer to an administrative interpretation.” Johnston-Willis , 6 Va. App. at 243-44, 369 S.E.2d at 8. Accordingly, when a litigant contends that he was deprived of due process during an administrative proceeding, we review the administrative proceedings de novo , giving no deference to the judgment below. See id. ; see also Department of Prof’l & Occupational Regulation v. Abateco Servs. , 33 Va. App. 473, 479, 534 S.E.2d 352, 355 (2000). In this case, Haley does not contend that sh e was deprived of “reasonable notice” or an “opportunity to be heard,” as re quired to satisfy procedural due process. McManama v. Plunk ,- 3 - 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995) (“Procedural due process guarant ees that a person shall have reasonable notice and opportunity to be heard before any binding order can be made affecting the person’s rights to liberty or property.”); see also Klimko v. Virginia Employment

Comm’n , 216 Va. 750, 757, 222 S.E.2d 559, 565 (1976) (holdi ng that, to satisfy procedural due process, it is sufficient to provi de an opportunity for a hearing a nd a judicial determination). Rather, Haley argues that she was not afforded procedural due process because the Board deprived her of the “right to cross-examine” and the “right to have testimony given under oath.” We disagree. As noted above, procedural due process only guarantees that an individual have an “opportunity to be heard.” Id. The constitutional right to confront and cross-examine witnesses is found in the Sixth Amendment and, thus, applies only in criminal cases. Therefore, there is no general constitutional right, during that “opportun ity to be heard,” to cross-examine witnesses and have testimony provided under oath. Accordi ngly, unless those “rights” are guaranteed by statute or rule, it follows that there was no pr ocedural due process violation in this case. In a formal hearing, there is a statut ory right to cross-examination. See Code § 2.2-4020(C). Specifically, Code § 2.2-4020 states, in part: A. The agency shall afford opportu nity for the formal taking of evidence upon relevant fact issues in any case in which the basic laws provide expressly for d ecisions upon or after hearing and may do so in any case to the extent that informal procedures under § 2.2-4019 have not been had or have failed to dispose of a case by consent.

* * * * * * * C. In all such formal proceedings the parties shall be entitled to be accompanied by and represented by counsel, to submit oral and documentary evidence and rebuttal proofs, to conduct such cross-examination as may elicit a full and fair disclosure of the facts , and to have the proceedings completed and a decision made- 4 - with dispatch. The burden of pr oof shall be upon the proponent or applicant. (Emphasis added.) In contrast, according to Code § 2.2-4019, A. Agencies shall ascertain the fact basi s for their decisions of cases through informal conference or consultation proceedings unless the named party and the age ncy consent to waive such a conference or proceeding to go directly to a formal hearing . Such conference-consultation procedures shall include rights of parties to the case to (i) have reasonabl e notice thereof, (ii) appear in person or by counsel or other qua lified representative before the agency or its subordinates, or before a hearing officer for the informal presentation of factual data, argument, or proof in connection with any case, (iii) ha ve notice of any contrary fact basis or information in the possess ion of the agency that can be relied upon in making an adverse decision, (iv) re ceive a prompt decision of any application for a license, benefit, or renewal thereof, and (v) be informed, brie fly and generally in writing, of the factual or procedural basis fo r an adverse decision in any case. (Emphasis added.) In other words, where the ba sic laws do not provide fo r a formal hearing, the

law does not mandate one. See EDF v. Va. State Water Control Bd. , 12 Va. App. 456, 464, 404 S.E.2d 728, 732-33 (1991) (holding that “[t]he ri ght to a formal hearing is governed by the

VAPA and the basic law” and that “formal hearings are not mandatory under Code § 9-6.14:12.”). 2 In fact, an agency is required to hold an informal fact-finding conference (IFF) unless both parties agree to proceed di rectly to a formal hearing. See Code § 2.2-4019. Here, Haley never requested a formal hearing, 3 nor was she guarantee d one by statute.

See Code § 2.2-4020. Thus, because Haley had an informal hearing pursuant to Code § 2.2-4019, we hold that Code § 2.2-4020 is inapplicab le. Moreover, under the plain meaning of Code § 2.2-4019, Haley was not entitled to cross-ex amine the witnesses or force those witnesses

2 Former Code § 9-6.14:12 is now Code § 2.2-4020.

3 We also note that Haley fa iled to appear at the regular ly scheduled Board meeting during which the Board was to consider her case.- 5 - to provide their testimony under oath. See Watkins v. Hall , 161 Va. 924, 930, 172 S.E. 445, 447 (1934) (“Where the legislature has used words of a plain and definite im port the courts cannot put upon them a construction which amounts to holdi ng the legislature did not mean what it has actually expressed.”). And because there is no constitutional right to cross-examination during an informal hearing, it follows that the administ rative hearing complied with the requirements of procedural due process. B. Sufficiency of the Evidence “In determining whether there is substant ial evidence to support findings of fact, on appeal, the appellate court gives great defere nce to the agency decision.” Johnston-Willis , 6 Va. App. at 246, 369 S.E.2d at 9. “In determining wh ether credible evidence exists, the appellate court does not retry the facts, reweigh the pre ponderance of the evidence, or make its own determination of the credibility of the witnesses.” Crutchfield , 45 Va. App. at 555, 612 S.E.2d at 254 (quoting Wagner Enterprises, Inc. v. Brooks , 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)) (internal quotations omitted). Moreover, “[ u]nder the substantial evidence standard, the reviewing ‘court may reject the agency’s findings of fact “only if, considering the record as a whole, a reasonable mind would necessarily co me to a different conclusion.”’” Id. at 553, 612 S.E.2d at 253 (quoting Virginia Real Estate Comm’n v. Bias , 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983)). In this case, the trial court relied on the agen cy record and counsel’s briefs to dismiss the petition for appeal and affirm th e Board’s final order and opinion. The agency record contains Mr. Castle’s summary of the IFF, which indicat es that Haley, Bert Ll oyd, Stephen Rochkind, and Sheri Sylvester participated in the IFF. Based upon the testimony and the exhibits, Castle came to the following conclusions: (1) He found unpers uasive Haley’s assertion that Sylvester was upset with her because she wanted a higher appr aised value of her home, (2) Sylvester did not- 6 - file the complaint with the Board, and thus had no motive to lie about never seeing Haley before the IFF, (3) because Haley testified that she was appraising fifteen to twenty homes a week, there is a plausible reason why Lloyd may have conduct ed the appraisal, and (4) Haley and Lloyd’s testimony was “evasive” and “unconvincing.” Clear y, there was credible ev idence to support the conclusion that Haley did not perform the appraisal, and, thus, we hold that the trial court did not err in dismissing the petition for appeal.

CONCLUSION Haley never requested a formal hearing, as permitted under Code § 2.2-4020, and thus

was not entitled to cross-examination or testimony under oath pursu ant to Code § 2.2-4019. Moreover, there is credible eviden ce in the record to support the trial court’s decision to dismiss Haley’s petition for appeal. Accordi ngly, we affirm the judgment below.

Affirmed.