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Phillip B. v. Faust

CASE: Phillip B. v. Mike Faust and Arizona Department of Child Safety

STATUS: Closed

NCLA ROLE: Counsel


ORIGINAL COURT: Final agency decision issued by the Director of Arizona Department of Child Safety

DECIDING COURT: The Arizona Court of Appeals, Division One

OPENED: August 30, 2019

AGENCIES: Arizona Department of Child Safety


Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Did we achieve our litigation objective? Yes. The Arizona Court of Appeals ruled that the director of the Arizona Department of Child Safety (DCS) cannot interfere with independent judicial proceedings or unilaterally list someone on the child abuse registry.

Court Outcome: A three-judge panel ordered that Phillip B.’s name be removed from the DCS Central Registry of substantiated findings of child abuse.

Larger Impact: “Innocent until proven guilty” is a core principle of the American justice system. This case reinforces that unelected bureaucrats are not allowed to sidestep this pillar of justice.

Summary: A core principle of the American justice system holds that defendants are considered innocent until proven guilty. But under the administrative review system that was in place at the Arizona Department of Child Safety (DCS), a mere finding of “probable cause” by the agency’s director would land the accused on the Arizona Central Registry of child abusers for 25 years.

For decades, NCLA client Phillip B. has worked with youth in many capacities including counselor, football coach, teacher and professional supervisor of foster kids, devoting his career to making a positive difference in their lives. He had an untarnished reputation as a person working with youth. But in 2018, Mr. B. (whose name has been redacted to preserve his anonymity) found himself falsely accused of child abuse by one of the children in his care.

According to the findings of fact entered into the record, a 15-year-old resident where he was employed, accused him of using “inappropriate restraint” against a 13-year-old resident. In reality, Mr. B. had “placed his hand on the boy’s shoulder and admonished him to calm down” after the teen became distressed because he did not want to do chores. An administrative law judge (ALJ) from the Office of Administrative Hearings, which is independent of DCS, heard eyewitness testimony and made credibility determinations. She then concluded that probable cause did not exist to support a finding of abuse. In other words, she cleared Phillip B. of the charge.

Remarkably, despite the ALJ’s conclusion, DCS Director Gregory McKay rejected the findings, amended both the ALJ’s findings of fact and conclusions of law, and substituted his own judgment in place of the ALJ’s. Without court intervention, this turn of events would add Mr. B.’s name as a child abuser on the Arizona Central Registry, utterly destroying his reputation and career.

The New Civil Liberties Alliance challenged several aspects of the DCS’s process, including the low standard of proof (“probable cause”), the inability to cross-examine witnesses, and the ability of a bureaucrat at DCS to reverse the ALJ’s findings and act as prosecutor, judge, and jury in determining the fate of the accused.

On September 9, 2020, a Maricopa County Superior Court judge affirmed the decision of the director of the Arizona Department of Child Safety (DCS) concerning an unproven child-abuse allegation in the case Phillip B. v. Mike Faust and Arizona Department of Child Safety. NCLA exposed several constitutional problems in the DCS process that deprived Mr. B. of liberty without due process of law under the U.S. and Arizona Constitutions as well as the separation-of-powers doctrine under the Arizona Constitution.

But in his order, Judge Douglas Gerlach said that he would not decide the constitutionality of the administrative review scheme that the legislature put in place. One of the most dubious provisions was the ability of agency heads to reject or modify the decisions of ALJs. Independent ALJ decisions that respect due process and rules of evidence could be overturned by biased agency heads ignoring rules of civil procedure and evidence. This practice violated the due process rights of defendants.

NCLA, on behalf of Mr. Phillip B., appealed this decision to the Arizona Court of Appeals, Division One.

On June 14, 2022, a three-judge panel of the Arizona Court of Appeals ordered the removal of Mr. Phillip B.’s name from the Arizona Department of Child Safety Central Registry of substantiated findings of child abuse. DCS’s then-Director had ‘deleted’ factual findings and credibility determinations made by an independent administrative law judge who took live testimony in the case. NCLA commended the Arizona Court of Appeals for clearing Phillip B.’s name and ruling that the administrative review system in place at DCS did not allow the agency head to unilaterally reject or modify the decisions of independent ALJs and then place a name on the Central Registry.


Opinion of the Arizona Court of Appeals, Division One

June 14, 2022 | Read More

Brief Amicus Curiae of Goldwater Institute in Support of Appellant with Consent of All Parties

May 6, 2021 | Read More

Appellant’s Reply Brief

April 19, 2021 | Read More

Appellant’s Opening Brief

December 28, 2020 | Read More

Notice of Appeal in the Superior Court of Arizona in Maricopa County

September 21, 2020 | Read More


NCLA Victory! AZ Appeals Court Rules DCS Dir. Cannot Unilaterally Add Name to Abuse Registry

June 14, 2022 | Read More

NCLA Asks AZ Court of Appeals to Require Due Process Before DCS Adds Names to Central Registry

April 19, 2021

NCLA Appeal Challenges AZ Dept. of Child Safety’s Low Burden of Proof and Lack of Due Process

December 29, 2020 | Read More

AZ Trial Court Refuses to Decide Constitutionality of Dep’t of Child Safety’s Admin. Review Scheme

September 9, 2020 | Read More

Watch: NCLA Video Exposes Flawed Administrative Review Process at AZ Dep’t of Child Safety

July 11, 2020 | Read More


Checks and Balances: October 2020


February 7, 2023

Judge rules Department of Child Safety can legally put people on child-abuse black list

Arizona Central

February 7, 2023

Arizona judge declines to rule on constitutional challenge to agency adjudication process

Ballotpedia News

February 7, 2023

Judge: OK for Arizona agency chiefs to overrule independent hearing officers

This is Tuscon

February 7, 2023

Judge affirms state agencies can disregard conclusions of hearing officers

Pinal Central

February 7, 2023




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