PROCEDURAL DUE PROCESS LIMITATIONS ON THE
MUNICIPAL LAWYER COMBINING QUASI-JUDICIAL
AND PROSECUTORIAL OR INVESTIGATORY
FUNCTIONS
I.
Introduction
This paper discusses the host of questions and concerns that have been
spawned by recent California appellate cases elevating principles of
administrative law concerning the propriety of combining quasi-judicial,
investigatory and prosecutorial functions to the status of a procedural due
process mandate. As a threshold matter, the paper discusses when
procedural due process safeguards are triggered. In describing the
differences in approach, in this respect, under the United States and
California constitutions, the paper relies almost entirely on the attached
excellent paper on this question written by UCLA Professor Emeritus,
Michael Asimow. Professor Asimow is a well-known and highly respected
authority on administrative law and was a consultant to the California
Legislature when it enacted the California Administrative Procedure Act
(“APA”) Government Code §§ 11340 -11529. The paper also examines the
degree to which the fair hearing guarantees of Code of Civil Procedure
section 1094.5 require procedural protections, which are akin to those
triggered by due process. The heart of the paper takes up the due process
discussion where the November 2003 Hastings Municipal Law Institute
symposium on due process left off, namely, when might a city be found to
have improperly combined adjudicatory and investigative or prosecutorial
functions due to the conduct of the municipal lawyer, and how can such
problems be avoided or remedied?
II.
When is Procedural Due Process Triggered?
A.
United States Constitution
Modern due process jurisprudence, under the United States constitution
instructs that it is only when the government deprives an individual of a
property or liberty interest that it is under an obligation to afford that
individual procedural due process protections. Mathew v. Eldridge, 424
U.S. 319, 332-33 (1976). “Procedural due process imposes constraints on
governmental decisions which deprive individuals of “liberty” or
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“property” interests within the meaning of the Due Process Clause of the
Fifth and Fourteenth Amendment.” Id. at 331.
Interestingly, in Horn v. County of Ventura, 24 Cal.3d 605, 615 (1979), the
California Supreme Court glossed over this distinction and went on to reach
the due process issue. In assuming that due process applied, the court
relied on language from an earlier case, Scott v. City of Indian Wells, 6
Cal.3d 541, 548-549 (1972) “land use decisions which ‘substantially affect’
the property rights of owners of adjacent parcels may constitute
“deprivations” of property within the context of procedural due process” in
combination with allegations of Horn’s complaint that the subdivision plan
he opposed “will substantially interfere with his use of the only access
from his parcel to the street and will increase traffic congestion and air
pollution.” (Emphasis added) Horn v. County of Ventura, 24 Cal. 3d 615.
Professor Asimow pointed out that the implied assumption in Scott v. City
of Indian Wells, 6 Cal.3d 541, 548-549 (1972), that discretionary decisions
are automatically subject to due process protections, was expressly
disavowed in Board of Regents v. Roth, 408 U.S. 564 (1972). In that case
the Court rejected a claim by a probationary university professor that his
rejection during probation was protected by due process. The Court
explained that a property or liberty interest had to be at stake before due
process protections were triggered. Id at 569-570. Thus, Professor
Asimow concludes that Scott seems incorrect as a matter of federal
constitutional law. (408 U.S. 564 (1972).)
In Horn the court held that, under due process, the adjacent property owner
was entitled to notice and an opportunity to be heard with respect to his
neighbor’s subdivision application. Horn v. County of Ventura, 24 Cal. 3d
615. Subsequent cases which cite Horn treat it as requiring reasonable
notice and an opportunity to be heard to be provided to land owners in land
use cases; these cases do not address the threshold question of whether
there is a triggering liberty or property interest at stake and thus whether
due process even applies. See e.g. Cohan v. City of Thousand Oaks, 30
Cal.App.4th 547, 555-56 (1994); Van’t Rood v. County of Santa Clara, 113
Cal. App. 4th 549, 570 (2003).
The California Supreme Court has yet to squarely resolve whether due
process would be applicable to a mere denial of an application for a land
use entitlement since, in its most recent pronouncement on the issue, due
process was assumed to be applicable. For example, in the Court of Appeal
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decision in Haas v. County of San Bernardino, 69 Cal.App. 4th 1019, 1025,
n. 1 (1999), the Court of Appeal noted that “neither party disputes that Haas
is entitled to constitutionally mandated due process protections in appealing
revocation of his massage clinic license.” (Emphasis added) The California
Supreme Court decision in Haas v. County of San Bernardino, 27 Cal.4th
1017, (2002) is silent on the question of when due process is triggered,
since the sole issue before it involved the scope of due process limitations
on the manner in which outside hearing officers are retained. The
applicability of due process was conceded, as the Court of Appeal decision
notes.
The United States Supreme Court in American Manufacturers Mutual
Insurance, 526 U.S. 40, 59-61, rejected a claim that an initial denial of
eligibility for workers’ compensation benefits created a liberty or property
interest protected by due process.
“In Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S.
Ct. 1011 (1970), we held that an individual receiving federal
welfare assistance has a statutorily created property interest in
the continued receipt of those benefits. Likewise, in Mathews,
supra, we recognized that the same was true for an individual
receiving Social Security disability benefits. In both cases, an
individual's entitlement to benefits had been established, and
the question presented was whether predeprivation notice and
a hearing were required before the individual's interest in
continued payment of benefits could be terminated. See
Goldberg, supra, 397 U.S. at 261-263; Mathews, supra, at
332.
(Emphasis in original) 526 U.S. 60.
From federal due process law, one can thus derive the following guidance:
that federal due process is triggered only by revocation, reduction or
termination of land uses and other entitlements that the government had
previously granted. Such governmental actions triggering due process
would include nuisance abatement actions, terminations of non-conforming
uses, revocation of a use, discipline or termination of employment, placing
liens on property or other unique circumstance involving taking away or
significantly diminishing an existing property right.
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Conversely, a simple denial of a permit, employment, a license and the like
would not trigger due process in light of the absence of any property or
liberty interest. This rule of thumb is necessarily a gross oversimplification
of the issue. There is no shortcut for analyzing the particular deprivation at
stake in order to ascertain whether a liberty or property interest may be at
issue. In any event, defining when federal due process protection is
triggered may be only of academic interest in California, in light of the
California Supreme Court’s broad reading of when California constitutional
due process applies.
B.
California Constitution
In People v. Ramirez, 25 Cal.3d 260, 268-69 (1979), a criminal sentenced
to incarceration for burglary and heroin possession challenged his exclusion
without due process from the California Rehabilitation Center (“CRC”),
which provided treatment for drug problems. The Court found that the
defendant had a liberty interest in remaining in the CRC, the deprivation of
which was subject to due process protections. In reaching its conclusion,
the California Supreme Court criticized the circularity of federal due
process doctrine, noting that it only recognized a federally protected liberty
or property interest if a court found that a state constitution or statute
created such an interest on specified terms.
In rejecting this approach, the California Supreme Court reasoned that a
legislature could simply legislate its way around due process guarantees by
the manner in which it defined the protected interest, since most such
interests will be derived from statutory and not constitutional law. In the
Court’s view, the federal approach did not lead to any predictability in
administrative decisions or sufficiently recognize, “the dignity and worth of
an individual by treating him as a fully participating and responsible
member of society.” Id at 320. It therefore concluded that, under the
California Constitution, “due process safeguards required for protection of
an individual’s statutory interest must be analyzed applying the principle
that freedom from arbitrary adjudicative procedures is a substantive
element of one’s liberty.” (Emphasis added.) Id.
Due process guaranteed under Article I § 7 of the California Constitution
thus, “presumes that when an individual is subject to deprivatory
governmental action, he always has a due process liberty interest both in
fair and unprejudiced decision-making and in being treated with respect
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and dignity.” (Emphasis added) Id. It is important to note that Ramirez
was not challenging termination from a continuing program in which he
was already enrolled. Rather, he was challenging the initial decision to
exclude him from the program.
The principle that procedural due process protection is applicable to all
adjudicatory action was affirmed in Saleeby v. State Bar of California, 39
Cal.3d 547, 563-64 (1985). There the court upheld a client’s claim that the
State Bar’s rules governing a Client Security Fund violated due process. 1
Like the Ramirez case, Saleeby involved an application for benefits, not a
termination of existing benefits.
The most important distinction to bear in mind here is that due process
under the California Constitution applies to all adjudicative actions,
whereas due process under the United States Constitution is triggered only
when liberty or property interests are at stake.
C.
In the Land Use Context, Later California Cases
Have Rejected Due Process Analysis, Instead
Applying the Fair Hearing Requirements of Code
of Civil Procedure Section 1094.5 or Have Applied
Due Process Protections Without First Discussing
Whether Due Process Applies
In the land use context, later California cases have rejected analyzing fair
hearing issues under due process, and have relied only on federal cases
without any discussion of either Horn v. County of Ventura, supra, 24 Cal.
3d 605, 723, People v. Ramirez, supra, 25 Cal.3d 260, 268-69, or Saleeby
v. State Bar of California, supra, 39 Cal.3d 547, 563-64.
The leading case of this genre is Clark v. City of Hermosa Beach, 48
Cal.App. 4th 1152 (1996) a second appellate district, Division One case.
There, plaintiff Clark claimed that the City’s denial of his permit to build a
two-unit condominium violated substantive and procedural due process
based upon the animus of a particular Council member who, as a neighbor,
had actively opposed the project. The neighbor was subsequently elected to
the Council and participated in a hearing to deny the project. For this
reason, Clark asserted that the Council was not an impartial decision maker.
1
Professor Asimow’s paper describes the application of this principle in subsequent cases.
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The Court first observed that Code of Civil Procedure 1094.5 creates a
statutory right to a fair hearing, which must be conducted before an
impartial tribunal. Id at 1170. “Biased decision makers are …
impermissible and even the probability of unfairness is to be avoided….”
Examples of factors which would prejudice a tribunal are common law
pecuniary bias and personal embroilment. Id. The Court found that the
neighbor/council member was biased in both respects because of the effect
of the condominium project on the property in which he lived in and
because of his personal animosity towards the applicant for the City permit.
With respect to the plaintiff’s claim that the City had violated his federal
civil rights by denying him due process, the court determined that there was
no protected property or liberty interest at stake because the level of
discretion granted the City in approving or denying the permit vitiated any
claim that the permit was an entitlement rising to the level of a property
interest. Id. In this respect, the opinion made no attempt to distinguish or
even discuss Horn v. County of Ventura, supra, 24 Cal. 3d 605, 723. The
opinion is silent on the applicability of the California Constitution’s due
process protections, apparently because Clark’s due process claim was an
element of his cause of action that his federal civil rights were denied.
Id at 1159.
The holding in Clark v. City of Hermosa Beach that federal due process is
not triggered by a land use permit denial was reiterated in another Second
Appellate District case from Division Two, Breakzone Billiards v. City of
Torrance, 81 Cal.Ap.4th 1205, 1223-24 (2000). That court went on to
analyze the procedural claims made in that case under the fair hearing
requirements of Code of Civil procedure 1094.5 and the California
Constitution. Neither the Clark v. Hermosa Beach nor the Breakzone
Billiards v. City of Torrance courts discussed whether an individual may
have a liberty interest under the California constitution in “fair and
unprejudiced decision-making and in being treated with respect and
dignity.” See People v. Ramirez, supra, 25 Cal.3d at 320. Both of these
cases reiterated that Code of Civil Procedure Section 1094.5 requires
adjudicatory decision to be fair and decision makers to be impartial.
Interestingly, one of the central issues in Breakzone Billiards v. City of
Torrance 81 Cal.App.4th 1205, 1235-36 was whether the City Council
proceedings had resulted in a biased decision maker since a member of the
Council had appealed the decision to the Council and had participated in
making the decision itself. The court rejected the contention that the City
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had improperly combined adjudicative and prosecutorial functions and in
this regard pointed out that the California cases follow federal law, starting
with the seminal case of Withrow v. Larkin, 421 U.S. 35 (1975).
Breakzone Billiards v. City of Torrance 81 Cal.Ap.4th at 1235-36. (As this
paper will later explain at greater length, in Withrow v. Larkin the United
States Supreme Court rejected the argument that an agency violates due
process if it combines adjudicatory and prosecutorial or investigatory
functions.)
In conclusion, on the threshold question of whether due process is even
applicable, it is best to apply due process principles to any adjudicatory
hearing, since, one of the standards of review under the administrative
mandamus procedures of Code of Civil Procedure Section 1094.5 is
whether the agency provided a fair hearing before an impartial decision
maker and the California Constitution has been interpreted to apply to all
adjudicatory hearings. In any event, whether the decision maker is deemed
actually biased because of the improper combination of adjudicatory and
prosecutorial or investigatory functions is resolved by reference to the
federal due process cases starting with Withrow v. Larkin, supra, 421 U.S.
35.
III.
What Process Is Due?
A.
General Standards
1.
United States Constitution
Due Process “unlike some technical rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances [citations
omitted].” Mathews v. Eldridge, supra, 424 U.S. at 334. It is “flexible and
calls for such procedural protections as the situation demands [citations
omitted].” Id A court must weigh the private and governmental interest
involved using three factors: 1) the private interest to be affected by the
governmental action; 2) the risk that the procedures used will result in an
erroneous deprivation of that interest; and 3) the probable value, if any, of
using different procedures weighed against the governmental burden
entailed by the additional procedures. The California Supreme Court cases
construing the California Constitution consider an additional factor.
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2.
California Constitution
The California Supreme Court in People v. Ramirez, 25 Cal.3d 260, 268-69
adopted the federal factors laid out in Mathews v. Eldridge, but weaved into
them the dignitary values it used to trigger due process protections in the
first place. Under the California Constitution, the constitutionality of the
process which the government has provided will turn on: 1) the private
interest that will be affected by the official action; (2) the risk of an
erroneous deprivation of such interest through procedures used, and the
probable value, if any, of additional safeguards, (3) the dignitary interest in
informing individuals of the nature, grounds and consequences of the
action and in enabling them to present their side of the story before a
responsible government official, and the governmental interest, including
the function involved and the fiscal and administrative burdens that the
additional or substantive procedural requirement would entail. Id .
Notwithstanding the seemingly disparate standards used under the United
States and California Constitutions for determining what process is due, on
the issue which is the subject of this paper, namely whether a decision
making agency is biased because it improperly combined adjudicatory and
prosecutorial functions, it appears that California follows federal due
process cases. See Breakzone Billiards v. City of Torrance, 81 Cal.Ap.4th
at 1235-36. However, the most recent cases have not discussed the genesis
of the improper combination of functions doctrine, probably because it does
not appear to have been briefed.
3.
Code of Civil Procedure Section 1094.5
A trial court may issue a writ of administrative mandate where an agency
has deprived the petitioner of a fair hearing. Code of Civ. Proc., § 1094.5,
subd.(b). The court in Clark v. City of Hermosa Beach, supra, 48 Cal.App.
4th at 1170, delineated the elements of a fair hearing which can be derived
from applicable case law:
“[A]n individual has the right to a tribunal 'which meets . . .
standards of impartiality.' . . . Biased decision makers are . . .
impermissible and even the probability of unfairness is to be
avoided. . . . The factor most often considered destructive of
administrative board impartiality is bias arising from
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pecuniary interests of board members. . . . Personal
embroilment in the dispute will also void the administrative
decision . . ., although neither prior knowledge of the factual
background which bears on a decision nor prehearing
expressions of opinions on the result disqualifies an
administrative body from acting on a matter before it. . . . [P]
. . . Our Supreme Court has declined to fix rigid procedures
for the protection of fair procedure rights . . ., but it is
inconceivable to us that such rights would not include
impartiality of the adjudicators."
B.
Impartial Decision Maker - Improper Combination
of Functions
1.
United States Supreme Court
The argument that it is improper to combine adjudicatory functions with
prosecutorial or investigatory ones is another way of saying that a
decisionmaking agency is biased because it has also acted in a prosecutorial
role as an advocate on one side of the dispute to be adjudicated. Stated
differently, the partiality of an advocate is inconsistent with the impartiality
required of the quasi-judicial decisionmaker.
The leading United States Supreme case on this subject is Withrow ,
421 U.S. 35, supra. There the Court noted that as contrasted with claims of
pecuniary bias:
The contention that the combination of investigative and
adjudicative functions necessarily creates an unconstitutional risk of
bias in administrative adjudication has a much more difficult burden
of persuasion to carry. It must overcome a presumption of honesty
and integrity in those serving as adjudicators; and it must convince
that, under a realistic appraisal of psychological tendencies and
human weakness, conferring investigative and adjudicative powers
on the same individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee of
due process is to be adequately implemented.
Id. at 47- 48.
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It is worth reading Withrow closely for its discussion of the cases up to that
point on this issue in both finding and rejecting bias. The Court
summarized its own conclusions and that of a leading administrative law
treatise thusly
[I]t is not surprising, therefore, to find that "[t]he case law,
both federal and state, generally rejects the idea that the
combination [of] judging [and] investigating functions is a
denial of due process...." 2 K. Davis, Administrative Law
Treatise § 13.02, p. 175 (1958). Similarly, our cases,
although they reflect the substance of the problem, offer no
support for the bald proposition applied in this case by the
District Court that agency members who participate in an
investigation are disqualified from adjudicating. The
incredible variety of administrative mechanisms in this
country will not yield to any single organizing principle.
Id. at 726. The Court distinguished cases in which the decisionmaker
becomes an adversary and an advocate. Id at 727-28. Professor Asimow
also points out that some language in Goldberg v. Kelly, 397 U.S. 254
(1970) needs to be reconciled with the decision in Withrow. In Goldberg v.
Kelly the Court held that due process required an evidentiary hearing prior
to the termination of welfare assistance. 397 U.S. 254, 267-270. It noted
that “prior involvement in some aspects of a case will not necessarily bar a
welfare official from acting as a decision maker. He should not, however,
have participated in making the determination under review.” Professor
Asimow believes that these cases are best reconciled as permitting the head
of an agency to supervise both adjudicatory and administrative functions
but to prevent a lower level employee from being both a prosecutor and
judge.
Subsequently, in Hortonville Joint School Dist. v. Hortonville Education
Assn., 426 U.S. 482 (1976) the Supreme Court rejected the argument that a
school board was biased because it conducted a hearing concerning
teachers’ discharge after it had been involved in an adversary relationship
with them because they were on strike. The court concluded that there was
no evidence that the Board had the kind of “personal or financial stake in
the decision that might create a conflict of interest, and there is nothing in
the record to support charges of personal animosity.” According to the
Court, the school teachers had, “failed to demonstrate that the decision to
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terminate their employment was infected by the sort of bias that we have
held to disqualify other decisionmakers as a matter of federal due process.
Showing that the Board was "involved" in the events preceding this
decision, in light of the important interest in leaving with the Board the
power given by the state legislature, is not enough to overcome the
presumption of honesty and integrity in policymakers with decisionmaking
power.” Hortonville Joint School Dist. v. Hortonville Education Assn., 426
U.S. 496-497.
In Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) the Court found due
process was satisfied and no impermissible bias was indicated where the
assistant regional administrator of the Employment Standards
Administration was responsible for both investigating violations of child
labor standards and assessing penalties for those violations, because his
salary was fixed by law and because the administrator was entitled to a
presumption of honesty. However, there the facts did not involve the
combination of prosecutorial functions with adjudicatory ones.
In Schweiker v. McClure, 456 U.S. 188, 195 (1982) the Court rejected a
due process challenge to a Part B Medicare system in which private
insurance carriers assessed, on behalf of the secretary of health and human
services, whether or not the claimed procedure was medically necessary.
There, a denial of benefits was reviewed, upon request, by a different
claims assessor from the same carrier and, if the claimant was still
unsatisfied, he could be heard in an oral hearing by that carrier. Because
the moneys paid by the carriers came out of federal funds and not their own
funds, there was no bias indicated in this procedure. The Court found that
the challengers had failed to make any showing to rebut the presumption of
honesty and integrity to which the decisionmakers were entitled.
2.
Ninth Circuit
The federal court cases in Court of Appeal and the district court in the
Ninth Circuit have been almost uniformly hostile to claims that decision
makers were biased because of the institutional structure of the tribunal. In
two cases, the decisionmaker was found to be prejudiced because of
pecuniary bias, and the only remaining case to conclude that bias was
present was based on the unique set of facts involving pending litigation
against the city handled by the attorney who was advising the decision
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maker. The discussion of these cases is grouped below by whether or not
bias was found.
a)
Federal Cases in the Ninth Circuit-No
Bias
United States v. Garcia-Martinez, 228 F.3d 956, 961 (9th Cir. 2000) (No
impermissible bias found because deciding officer is under the supervision
of officers who exercise prosecutorial functions. “We will not presume bias
from the mere institutional structure of the INS’).
Ortiz v. Stewart, 149 F.3d 923 (9th Cir.1998) (Murder defendant unable to
overcome presumption of judicial honesty upon the sole allegation that the
judge in his trial had also presided over the defendant’s wife’s trial for the
same crime and expressed “doubts” about her guilt.)
Hirsh v. Justices of the Supreme Court, 67 F.3d 708 (9th Cir.1995)
(Petitioner failed to overcome the presumption of judicial honesty by
allegation that California Supreme Court justices and Bar Court justices
were biased decisionmakers in attorney disciplinary hearings because such
judges were competitors with attorneys being disciplined (in the sense that
all attorneys within a state are competitors with one another) or that
disciplinary fees were paid into the treasury of the state bar, from which
Bar Court justices salaries were paid (though the salaries were set by
statute).)
United States v. Oregon, Water Resources Dep't, 44 F.3d 758 (9th Cir. 994)
(Klamath tribe failed to demonstrate that theirs was a situation “in which
experience teaches that the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable,” where
it was claimed that Oregon judges hearing a water rights claim would defer
to Oregon officials of the Oregon Water Resources Board and their advisers
(the Oregon Department of Justice), who had litigated against the tribe’s
prior water rights claims.)
Kenneally v. Lungren, 967 F.2d 329 (9th Cir.1992) (Evidence of prior
statements regarding the case made by Medical Board members who were
not part of the medical quality division, of the division’s refusal to settle the
case, and refusal to grant an evidentiary hearing, were insufficient evidence
of bias to overcome the presumption of honesty in license revocation
hearing by medical quality division of Medical Board.)
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Silver v. United States Postal Service, 951 F.2d 1033 (9th Cir.1991) (No due
process violation was found in the structure of Postal Service claims where
one employee was responsible for investigating and prosecuting claims and
another was responsible for making adjudicative decisions even though
both employees “serve at the pleasure of the Postmaster General.” The
court also noted in dictum at page1041 that even where the adjudicative
and prosecutorial functions are combined in the same person, the plaintiff is
still burdened with overcoming the presumption of honesty.)
Grolier, Inc. v. Federal Trade Com., 699 F.2d 983 (9th Cir 1983) (Petitioner
failed to overcome the presumption of integrity when he claimed that the
ALJ had acted as legal advisor to the Federal Trade Commissioner during a
meeting between petitioner and the commissioner because the ALJ had
issued an affidavit that he was not privy to any ex parte information arising
out of that meeting.)
Vanelli v. Reynolds School Dist., 667 F.2d 773 (9th Cir.1982) (Petitioner’s
review hearing before school board whose members participated in the
decision to terminate him was not sufficient to overcome the presumption
of honesty because he could point to no “conflict of interest” or “personal
stake” held by any of the board members.)
Spokane County Legal Services, Inc. v. Legal Services Corp., 614 F.2d 662
(9th Cir. 1980) (Decision by Legal Services Corporation to suspend funding
for local nonprofit providers of legal services was not procedurally infirm
despite the fact that the hearing examiner was employed by the agency that
had originally made the decision to suspend funding, because they could
not show any personal bias or animosity or any pecuniary interest in the
proceedings.)
Ash Grove Cement Co. v. FTC, 577 F.2d 1368 (9th Cir.1978) (No violation
of due process found where FTC staff both investigated and, subsequent to
the findings of that investigation, adjudicated a proceeding against
petitioner where commissioner’s “tentative conclusions” were mirrored in
the FTC’s formal complaint against the petitioner because, in part, the
presumption of honesty favored the commission. The court only discussed
that it was “staff” that investigated the petitioner, the commissioner who
was responsible for issuing the “tentative conclusions,” and the
Commission that sat in final judgment.)
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Swank v. Ingle, 1997 U.S. Dist. LEXIS 14243 (N.D. Cal. May 20, 1997)
(No showing of impermissible bias on the part of a trial judge who worked
in the same building with and knew, as an acquaintance, the mother of
defendant’s victim because defendant had failed to show any “substantial,
personal, or direct influence” on the judge.)
Root v. Schenk, 953 F. Supp. 1115 (1996) (The court noted that Withrow
had held that “situations in which the probability of a decisionmaker's bias
is too high to be constitutionally tolerable include cases in which the
decisionmaker "has been the target of personal abuse or criticism from the
party before him,” but found that judges were used to criticism and that
merely criticizing the judge in a federal complaint did rise to the level of
“personal embroilment” required to indicate “intolerable bias.”)
San Francisco Police Comm'n v. Police Comm'n, 1996 U.S. Dist. LEXIS
6837 (N.D. Cal. May 9, 1996) (Plaintiff could not make out a claim of
undue bias on the mere fact that the police commission was both
responsible for initiating the investigation against them and for adjudicating
their hearing because they could point to no special facts tending to indicate
bias.)
Los Angeles Memorial Coliseum Com. v. National Football League, 89
F.R.D. 497 (1981) (No due process violation under Withrow where jurors
were said to be residents of a municipality that would receive direct
financial benefit from one resolution of the case before them (whether or
not to move a professional football team to that municipality.)
b)
Bias Found
Stivers v. Pierce, 71 F.3d 732 (1995) (Due process violation found where
plaintiff was denied a private investigator’s license by the Nevada Private
Investigator’s Licensing Board where board member owned a business that
competed with plaintiff’s, creating an impermissible pecuniary interest, and
where there was substantial evidence of personal animus between plaintiff
and this board member.)
Walker v. City of Berkeley, 951 F.2d 182 (9th Cir. 1991) (Due process was
violated where the same attorney both advised the city manager in
plaintiff’s termination hearing and represented the city in the plaintiff’s
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wrongful termination suit in federal court where plaintiff had prematurely
filed suit while post termination hearing was pending. The facts were
unique because the jury found that the attorney was actually the decision
maker.)
Melashenko v. Bowen, 1990 U.S. Dist. LEXIS 11427 (E.D. Cal. June 19,
1990) (There was no indication of impermissible bias in the mere fact that
the same Office of the Inspector General employee investigated and
prosecuted the petitioner and adjudicated his hearing before the OIG.
There was, however, impermissible bias found in the merit pay system that
gave that employee a pecuniary interest in imposing more sanctions.)
Thus, two out of the three ninth circuit cases finding bias (Stivers and
Melashenko) did so based on evidence proving that the decision maker had
a pecuniary interest in the outcome of the adjudication. Further, though
most involved some separation of investigative or prosecutory function and
decisionmaking functions as between different employees within the
agency, three cases found no impermissible bias on the basis of
combination of functions even though the same official was responsible for
more than one function (Grollier, Vanelli, and Melashenko,) The court in
Melashenko specifically found that there was no bias as a result of
combination of functions but because the hearing officer had a pecuniary
interest in the result of his decision. 2
3.
California Cases – Impartial Adjudicator
Until two recent appellate cases decided, last year, California cases have
also rejected claims that a decisionmaker was biased in the absence of
pecuniary bias or where the same official or law office was involved in both
an adjudicatory and prosecutorial function without walling off one from the
other.
a)
California Supreme Court
In Haas v. County of San Bernardino, 27 Cal. 4th 1017 (2002) the claimed
improper combination of prosecutorial and adjudicatory functions was not
specifically at issue. Nonetheless, the Court cited Withrow v. Larkin
reiterating that, absent pecuniary bias, decisionmakers are entitled to a
presumption of honesty and integrity. It found, however, that due process
2
Attached to this paper is a list of federal cases from other circuits on this issue.
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Procedural Due Process – Combination of Functions
was violated by the institutional practice in that case of the County
retaining hearing officers on an ad hoc basis to adjudicate claims because
the hearing officer had a pecuniary bias in ruling in favor of the County in
order to secure future business.
By contrast, where there was no pecuniary bias, the California Supreme
Court has rejected the claim that decisionmakers were biased. In Dodds v.
Commission on Judicial Performance, 12 Cal. 4th 163 (1995) the California
Supreme Court found that a commission that had censured a judge was
impartial despite claims that the commissioners were biased against him
because of collateral litigation against the commission brought by the judge
in order to keep the hearing confidential. The court held that “absent
persuasive evidence of actual bias, there is no reason to believe that these
decision makers [lost] their objectivity.”
Similarly, in Kloepfer v. Commission on Judicial Performance, 49 Cal. 3d
826 (1989) the court found no bias where a judge subjected to disciplinary
measures by a commission challenged its determination on the grounds that
the commission was carrying on investigations parallel to those being
carried out by the Attorney General’s office, and that the director and chief
counsel to the commission participated in that investigation. Because there
was no evidence of actual bias to overcome the presumption of honesty in
the mere existence of a combination of investigative and adjudicative
functions and because there appeared to be ample procedural safeguards,
there was no impermissible bias shown. Kloepfer appears to be the leading
case in California Supreme Court case interpreting Withrow.
b)
California Courts of Appeal
In the Courts of Appeal the mere fact that an agency combined
prosecutorial and adjudicatory functions has not been deemed sufficient to
constitute bias. See e.g. CMPB Friends, Inc. v. Alcoholic Beverage
Control Appeals Bd., 100 Cal.App.4th 1250 (2002) (administrative law
judge appointed by the Department of Alcoholic Beverage Control
(“ABC”) cannot be presumed to be biased towards the ABC prosecutorial
function merely because the ABC appoints the ALJ); McIntyre v. Santa
Barbara County Employees' Retirement System, 91 Cal.App.4th 730 (2001)
(no due process violation because retirement board unilaterally appointed
and compensated hearing officers or because of the combination within the
board generally of the investigative and adjudicative functions- bias in the
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Procedural Due Process – Combination of Functions
hearing officers may not be presumed, but must be proven by the person
claiming bias.) Love v. City of Monterey, 37 Cal.App.4th 562 (1995) (no
due process violation where initial investigation of contested parking
tickets is conducted by the same agency that issued the ticket, though the
court took particular note of the fact that in this case it was not the same
employee); Binkley v. City of Long Beach, 16 Cal. App.4th 1795 (1993) (no
bias shown where police chief who was terminated by city manager was
afforded a hearing on his termination before a private “professional hearing
officer” appointed by the city manager because no evidence that the hearing
officer “had a personal or financial stake in the matter 3, or that he harbored
any animosity toward respondent.”); Blinder, Robinson & Co. v. Tom, 181
Cal.App.3d 283 (1986) (Govt. Code § 11511, part of the APA, is not a
violation of due process since there was no showing of actual bias in the
fact that the prosecuting agency had discretion as to whether or not to
compel the appearance of out of state witnesses sought by the defendant.)
Two California cases found unconstitutional bias based on actual facts
showing that the tribunal had a demonstrated personal prejudice towards a
class of litigants before it or had a pecuniary bias because the
decisionmaking tribunal was composed of competitors of the party who
appeared before it. In Bullock v. City and County of San Francisco, 221
Cal. App. 3d 1072 (1990), allegations in plaintiff’s complaint that a tribunal
was actually biased against plaintiff and landlords, coupled with proof of
bias in the administrative record and a prior appellate finding of such bias
was sufficient to state a cause of action for a due process violation in the
administration of an ordinance prohibiting conversion of residential hotels
to tourist hotels. In American Motors Sales Corp. v. New Motor Vehicle
Bd., 69 Cal. App. 3d 983 (1977), he court found due process inadequacies
in the procedure afforded automobile dealers whose dealer licenses had
been revoked. The review board was (and was required to be) partially
made up of automotive dealers. Because the court found that each dealer
member of the board had a pecuniary interest in each license termination as
a result of being in a competitive posture with the dealer whose license was
being revoked, the procedure was found to violate due process.
Bias has also been found where the same individuals were involved in
performing both the prosecutorial and adjudicatory functions. For example
in Golden Day Schools, Inc. v. State Dept. of Education, 83 Cal. App. 4th
3
Of course, the outcome might have been different had the case been litigated after Haas v.
County of San Bernardino, supra, 27 Cal.4th 1017, was decided.
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Procedural Due Process – Combination of Functions
695 (2000), a private contractor with the state department of education
challenged the department’s refusal to renew the plaintiff’s contract. The
plaintiff requested review by the department, but objected to the fact that
one of the members of the review panel had been primarily responsible for
the initial determination not to renew the contract. The court ruled for the
plaintiff, observing that “The claim that the combination of investigatory
and adjudicatory functions creates an unconstitutional risk of bias has been
difficult to sustain, but in federal practice it has been addressed by the rule
that no employee involved in investigating or prosecuting a case may
participate as an adjudicator.” Because the challenged member of the panel
was not removed, the review hearing was a violation of plaintiff’s due
process rights.
Similarly, in Applebaum v. Board of Directors, 104 Cal. App. 3d 648
(1980), a physician challenged the suspension of his obstetric privileges,
claiming a violation of due process. The appellate court agreed, holding
that where the investigative, accusatory, and adjudicatory functions were
carried out by the same physician committee members who also provided
testimony, created a “difficult position” for that committee.
The court stated:
In the case before us, of course, there was no administrative
law judge or other third party involved in the factual
determinations which resulted in revocation of plaintiff's
obstetrical privileges. The investigation was not conducted by
state employees insulated from the adjudicatory body by
layers of public bureaucracy; it was done by a group which
included the instigator of the charges, had overlapping
membership in the body (executive committee) which
reviewed both the initial and final decisions and to which the
majority of the formal adjudicators later belonged. As a
practical matter and without in any way impugning their good
faith, the general practitioner and pediatric specialist
members of the ad hoc committee were in an extremely
difficult position. The charges were brought by one of the two
specialists on whom they were accustomed and, indeed,
required to rely for obstetrical expertise and with whom they
were in frequent and intimate professional contact. His
associate supported the charges and the committee was thus
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Procedural Due Process – Combination of Functions
presented with a solid front of the only special expertise
available to it. To presume impartiality of the ad hoc
committee in such circumstances goes beyond what can
reasonably be expected of human beings in this professional
setting. In this situation a realistic appraisal of psychological
tendencies and human weakness compels the conclusion that
the risk of prejudgment or bias was too high to maintain the
guarantee of fair procedure.
104 Cal. App. 3d 648, 659.
The absence of such involvement by the decisionmaking tribunal in a
different case involving a physician resulted in the court’s rejection of that
claim of bias. See Rhee v. El Camino Hospital Dist., 201 Cal. App. 3d 477
(1988).
Interestingly, in the land use context, a claim of bias was rejected even
where a Council member appealed a land use decision to the Council and
then decided the appeal as part of the decisionmaking body. BreakZone
Billiards v. City of Torrance, 81 Cal. App. 4th 1205 (2000). This case was
decided under the California Constitution applying federal due process
cases involving the claimed improper combination of adjudicatory and
prosecutorial functions. A prior case, Cohan v. City of Thousand Oaks,
supra, 30 Cal.App.4th at 555-56 had held that a hearing process was biased
where a city council purported to appeal a planning commission decision to
itself in the absence of any authority under ordinance to do so. The Court in
BreakZone Billiards v. City of Torrance, distinguished Cohan since the
Councilmember in the City of Torrance exercised powers granted by local
law. 81 Cal. App. 4th at 1240.
The Court in BreakZone Billiards v. City of Torrance spent considerable
time discussing the claim that the combination of prosecutorial and
adjudicatory functions was evidence of bias.
Thus, it appears that the highest court of this state construes
the state Constitution's due process guaranty of a fair and
impartial administrative decisionmaker in the same manner as
the federal courts have interpreted parallel provisions in the
federal Constitution. In other words, mere involvement in
ongoing disciplinary proceedings does not, per se, violate due
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Procedural Due Process – Combination of Functions
process principles. [Conversely, t]hose principles are violated
. . . if the official or officials who take part in the proceedings
are demonstrably biased or if, in the least, circumstances such
as personal or financial interest strongly suggest a lack of
impartiality.
The court gave illustrations of cases both which failed to find specific facts
demonstrating bias and those which did find bias. Compare Binkley v. City
of Long Beach , 16 Cal.App.4th 1795 (1993) (procedure by which a police
chief had been discharged and his appeal heard were not fundamentally
unfair because the chief of police held his position at the pleasure of the
city manager who was free to discharge him without just cause so long as
the chief was given the opportunity to convince the employing authority to
reverse its decision.) with Mening v. City Council, 86 Cal.App.3d 341
(1978) where the city council was found to be so personally embroiled in
the discharge of the police chief that it violated due process when it
enhanced the discipline meted out to the police chief by the civil service
commission.
Howitt v. Superior Court, 3 Cal. App. 4th 1575 (1992) is the first California
case to apply Withrow v. Larkin, supra, 421 U.S. 35 to a context in which
the county counsel’s office both represented the department terminating a
city employee and advised the decisionmaking tribunal. After reviewing
both Withrow and the leading California Supreme Court decision
interpreting it, Kloepfer v. Commission on Judicial Performance, supra, 49
Cal. 3d 826 the court observed:
The mere fact that the decision maker or its staff is a more
active participant in the factfinding process—similar to the
judge in European civil law systems—will not render an
administrative procedure unconstitutional.
A more difficult question is presented where the
administrative agency chooses to utilize the adversary model
in large part but modifies it in a way which raises questions
about the fairness of the resulting procedure. Here, for
instance, we assume the county constitutionally could have
allowed the sheriff or the board of supervisors to review
personnel complaints by employees in the sheriff's
department. Instead, it created an independent and
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Procedural Due Process – Combination of Functions
disinterested administrative board to adjudicate disputes
between the county and its employees. The board of
employment appeals cannot be overruled by another county
agency or even by the board of supervisors. The Board does
not have its own investigative arm but instead relies on
adversary presentations by the employee and affected county
agency to illuminate the facts and relevant legal authority.
Each party is entitled to be represented by counsel at a formal
hearing.
Howitt v. Superior Court, supra, 3 Cal.App.4th at 1582. The court noted
that Midstate Theatres, Inc. v. County of Stanislaus, 55 Cal.App. 3d 864,
874 (1976) held that, under due process, the same lawyer could not
represent the county assessor and advise the county board of equalization in
the same proceeding.
The Court recognized that while flexibility must be present in an
administrative proceeding and fact finding and adjudication are not
mutually exclusive:
A different issue is presented, however, where advocacy and
decisionmaking roles are combined. By definition, an
advocate is a partisan for a particular client or point of view.
The role is inconsistent with true objectivity, a
constitutionally necessary characteristic of an adjudicator.
Howitt v. Superior Court, supra, 3 Cal.App.4th at 1585. The court went on
to hold that: “Performance of both roles by the same law office is
appropriate only if there are assurances that the adviser for the decision
maker is screened from any inappropriate contact with the advocate.” Id at
1586. The agency has the burden of proving that there were sufficient
safeguards against employees involved in the prosecution becoming in any
way involved in the decision making process. The creation of functionally
separate offices is not necessary to establish adequate screening.
Id at 1587, n. 4.
After this decision, some city attorneys were of the opinion that the case
established a bright line test. Under this view, only a public lawyer who
appeared as an advocate in the adjudicatory hearing would play a
prosecutorial role. Other city attorneys were more cautious and feared that
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Procedural Due Process – Combination of Functions
any involvement at the prosecutorial end would disqualify assumption of an
advisory role to the adjudicator. A subsequent case has made it clear that
the latter view has more currency in the courts. There, the due process
limitation on a lawyer or office (without adequate screening) assuming dual
prosecutorial and adjudicatory roles was extended even to advice to the
prosecutorial arm.
In Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal. App.4th 81
(2003) adult entertainment operators were denied renewal of their use
permit. They challenged the City’s procedures on the grounds that the
attorney who advised the city against granting the renewal in the first place
also acted as the adviser to the decisionmaker on appeal from the
determination that the application for the renewal was incomplete.
Drawing on analogies from the California Administrative Procedure Act,
Government Code section 11425.10 (a)(4) and Howitt v. Superior Court,
the court found this combination of functions unconstitutional. The court
specifically rejected the city’s reliance on cases such as Kloepfer on the
grounds that those cases did not involve a combination of functions in the
same person, whereas in this case, “dual functions were not held by
different sections of a single office, but by a single individual.”
It is worth noting that, while the court in Nightlife Partners, Ltd. v. City of
Beverly Hills concluded that the City combined prosecutorial and
adjudicatory functions, it never explained why it considered legal advice to
a lower level City official about the completeness of a zoning application to
be a “prosecutorial” function or the lawyer’s role that of an advocate.
Professor Asimow, in his remarks at the 2003 Hastings College of the Law
Municipal Law Institute Symposium on due process noted that a
prosecutorial role is one in which the person may be said to have a “will to
win”.
Also troubling is the court’s observation that while the California
Administrative Procedure Act, is not applicable to cities, it may be an
appropriate reference point in determining whether a hearing is fair. “[T]o
the extent citizens generally are entitled to due process in the form of a fair
trial before a fair tribunal, the provisions of the APA are helpful as
indicating what the Legislature believes are the elements of a fair and
carefully thought out system of procedure for use in administrative
hearings.” Nightlife Partners, Ltd. v. City of Beverly Hills 108 Cal.App.4th
at 92.
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Procedural Due Process – Combination of Functions
The blurring of distinctions between investigative and prosecutorial roles
and the seeming judicial deference to the APA as the due process gold
standard have profound implications. A lawyer’s involvement at the lowest
level of a city’s proceedings may render him or her ineligible to provide
advice at any other stage of the proceedings, since the APA requires the
segregation of adjudicative functions from investigative, prosecutorial or
advocacy functions. See Government Code § 114425.10 (a)(4). It also
prohibits ex parte contacts, which are common in most cities. See
Government Code § 114425.10 (a)(8).
The most recent case on the subject of whether a decisionmaker is biased
because of the role played by the city’s lawyer is Quintero v. City of Santa
Ana 114 Cal.App.4th 10, (2003). While Howitt and Nightlife Partners
held that there is a violation of due process when a single lawyer acts both
in a prosecutorial capacity (as an advocate) and as the adviser to the
decision maker/adjudicator, in the same matter, Quintero v. City of Santa
Ana held that due process is violated where a lawyer who regularly advises
the personnel board on other matters appears as an advocate before the
board on an unrelated matter, even though the board was advised by a
separate lawyer as to that matter. The court reasoned that the ongoing
relationship of the lawyer as adviser to the Board is likely to make the
Board defer to the position asserted by the lawyer in his advocacy role in
the new matter, notwithstanding the fact that the Board had a separate legal
adviser as to that matter.
Quintero v. City of Santa Ana goes far beyond any of the reported cases
invalidating administrative procedures on due process grounds. It invites
due process challenges to the structure of local government institutions and
creates a need for a veritable army of lawyers. The court did not even
discuss the presumption of honesty and integrity and simply concluded that
there was a likelihood of actual bias on the part of the board towards the
lawyer acting as the advocate in the proceeding because that lawyer in other
circumstances acted as the board’s adviser. Santa Ana’s petition for review
has been denied even though the League filed a letter in support of review
or in the alternative urged depublication of the case. Local Governments
will have to make significant adjustments in their administrative
procedures, in order to comply with the limitations imposed by Quintero v.
City of Santa Ana.
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Procedural Due Process – Combination of Functions
IV.
Lessons Learned from Due Process Cases Regarding
Impartial Decision Makers
Several guidelines emerge from these cases:
•
Apply due process principles about the necessity of an
impartial decisionmaker to all adjudicatory hearings, since
Code of Civil. Procedure Section 1094.5, in effect, imposes
due process safeguards, and due process under the California
constitution applies to all adjudicatory action.
•
The principle that a adjudicator must be impartial applies
under both statutory fair hearing and constitutional due
process requirements under the United States and California
Constitutions.
•
The improper combination of functions limitations applies
with equal force to any official combining functions, not just
lawyers, although the unstated assumption ( for example in
Walker v. City of Berkeley, supra, 951 F2d 182 ) is that
lawyers are more likely to be perceived as advocates and thus
may be more suspect as biased advisers when they play any
role, especially in related litigation that could be perceived to
taint their impartiality.
•
It is improper for the same lawyer (or other official) to be
involved in advising the prosecutorial arm and in advising the
adjudicatory official or body as to the same matter.
•
Two different lawyers from the same law firm or office can be
involved as long the individuals engaged in advisory and
prosecutorial function are screened from one other i.e. neither
knows about or affects anything the other is doing as to the
matter. Two separate law offices need not be set up for this
purpose.
•
It is probably best not to use a lawyer who has advised on an
investigatory function for advice to the adjudicator on the
same matter, in light of the broad way in which
“prosecutorial” functions were defined in Nightlife Partners,
Ltd. v. City of Beverly Hills, supra,108 Cal. App.4th 81 and
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Procedural Due Process – Combination of Functions
the fact that the APA prohibits the combination of
adjudicative and investigative functions.
•
Do not switch lawyers regularly assigned to advisory
functions to a prosecutorial function before the board they
advise in order to avoid the problem in Quintero v. City of
Santa Ana 114 Cal.App.4th 10.
•
No case has yet required that different levels of adjudicators,
for example the Planning Commission and Council be
advised by different lawyers. Yet there is troubling language
in Howitt v. Superior Court, supra, 3 Cal. App. 4th 1575,
1582, which suggests that once an adversary model is used,
for example by providing a higher independent level of
review, it may be inappropriate to have the lawyer who
advised the lower tribunal advise the higher one. 4
•
It is unclear whether the pecuniary bias problems present
when the decision maker, himself is an outside consultant
apply when outside counsel is retained solely to advise the
decisionmaking body.
Smaller local governments who are faced with a seeming fair hearing
mandate that they segregate officials engaged in prosecutorial or
investigative function and the lawyers who advise them from other
adjudicative level officials and boards and the lawyers who advise them
have certain choices to make which are discussed in the next section.
4
One of my astute colleagues observed that the plethora of prosecutors on the California bench
may have resulted in a judiciary more prone to perceive administrative due process through a lens
distorted by the highly adversarial nature of the criminal justice system. My own observation is
that lawyers from the private sector also tend to lean towards a view of due process that more
neatly divides functions, since they are usually retained on a transactional basis. Those of us who
labor within local government institutional trenches, especially in smaller cities, are painfully
aware that local government structures are simply not amenable to being harnessed to the
adversarial judicial model. We can, however, take comfort from the admonition in the leading US
Supreme Court cases that a great deal of flexibility is permitted in administrative structures and
that they must be evaluated in a pragmatic manner weighing several factors. It is up to local
government lawyers to educate the judiciary about the flexibility of due process mandates and the
impracticability of the adversarial model so that our administrative structures are not savaged on
an ad hoc basis without a full appreciation of the budgetary and institutional consequence of the
increasingly onerous due process mandate which emerges from each case.
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Procedural Due Process – Combination of Functions
V.
Remedies – Problems-Practice Tip
A.
Assign staff to separate prosecutorial or
investigative units on the one hand and
adjudicative units, which are segregated from one
another.
There are some problems with this approach which include whether enough
staff exist to assign to the different functions and the fact that the City
Attorney is unable to ensure consistency of legal advice if the lawyer
assigned to the lowest prosecutorial level cannot be supervised by the more
senior lawyer or city attorney herself/himself assigned to the adjudicative
level.
B.
Withholding Individualized Legal Advice to
Prosecutors and Investigators -Providing It Only
to Adjudicators.
Cities with limited legal staffs can avoid the improper combination of
functions by not providing advice at the lowest prosecutorial or
investigative level, on an individualized basis. Thus, for example, while
the city attorneys could provide generalized advice about principles and
procedures applicable to nuisance abatement or revocation of land use
entitlements or renewal of temporary uses and the like, they could wait to
provide legal advice regarding the application of the general principles to a
particular set of facts until the matter is before the adjudicatory body. With
this approach, any legal problems could be reviewed and corrected at the
adjudicative level. The disadvantage of this approach is that the absence of
legal advice at the lowest level of city involvement may result in inadequate
prosecutorial level work, making it impossible to proceed with enforcement
of important city laws.
C.
Outside Counsel, City Attorney Pooling
Arrangement To Advise Adjudicators; Haas
Problems of Pecuniary Bias?
If the city believes that legal advice at the prosecutorial or investigative
level is critically important, the city attorney could provide that advice and
then retain outside counsel for the adjudicatory phase. A question arises as
to whether the proscription in Hass v. County of San Bernardino, against
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Procedural Due Process – Combination of Functions
retaining hearing officers on an ad hoc basis, applies with equal force to a
legal adviser to a decisionmaker. This problem can be avoided by entering
into a pooling arrangement with other cities to function as advisers for each
other’s clients when due process problem arises. The solution is not very
satisfactory because outside counsel who have little familiarity with the
city’s procedures and ordinances and their enforcement and implementation
history will be advising the governing body or other high level adjudicatory
body.
In conclusion, the recent cases imposing limitations on the combinations of
adjudicative and prosecutorial or investigative functions can be addressed
by a careful approach to advising different levels and functions.
Unfortunately, our clients may suffer as we withdraw to ivory towers to
advise only decisionmakers or propose, what may seem like gargantuan
budgets for outside counsel.
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Procedural Due Process – Combination of Functions
APPENDIX TO DUE PROCESS PAPER ON COMBINING
FUNCTIONCIRCUIT COURT CASES OTHER THAN
NINTH CIRCUIT
Most cases from federal circuits other than the Ninth Circuit typically failed
to find bias.
First Circuit
•
Pathak v. Dep't of Veterans Affairs, 274 F.3d 28 (2002) There was
no violation of due process where doctor sought review of his seven
day suspension and where the director of the center for whom the
doctor worked both investigated allegations of sexual harassment
and imposed the final sanctions on the basis of his findings and on
the basis of the recommendations of an independent review board.
“Parties advancing due process arguments based on a combination
of investigative and adjudicative functions, and the decision maker's
bias allegedly resulting therefrom have a very difficult burden of
persuasion to carry. Withrow, 421 U.S. at 47; O'Brien, 544 F.2d at
547. Pathak has not met this burden.” They stated that the mere
combination of investigatory and adjudicative functions alone did
not amount to a violation of due process.
•
Doyle v. Secretary of Health & Human Services, 848 F.2d 296
(1988). A doctor challenged a determination by a peer review
organization to suspend his eligibility as a medicare provider, in
part, because the organization was charged with both the
prosecutorial and adjudicative function. The court, relying on
Withrow, rejected this contention saying that that was insufficient to
demonstrate bias in the proceeding.
•
Gorman v. University of Rhode Island, 837 F.2d 7 (1988). Student
of state university challenged a disciplinary hearing on the grounds
that it violated his due process rights. Par t of his challenge rested
on the facts that the hearing committee was advised by the director
of student life who had no voting privileges on the board who later
appeared to rebut the plaintiff’s challenges to the committee’s
determination. The court held that without more, this mere
combination of functions was insufficient to overcome the
presumption of impartiality.
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Second Circuit
•
Cousin v. Office of Thrift Supervision, 73 F.3d 1242 (1996). After
the Office of Thrift Supervision imposed a ban on petitioner’s right
to participate in any banking functions at an institution regulated by
the office, because of allegations of bribery and aiding and abetting
bribery, petitioner sought challenged that determination on the
grounds that the acting director of the office had supervisory
authority over the investigative, prosecutorial, and final decision
making processes. Without discussing whether these functions were
actually carried out by other employees, the court rules that under
Withrow, the mere combination of functions is not a violation of due
process.
•
Greenberg v. Board of Governors of Fed. Reserve Sys., 968 F.2d
164 (1992). Where petitioners were barred from the banking
industry subject to the findings of an ALJ in the Federal Reserve
System, petitioners charged that their hearing violated due process
because the ALJ’s former law clerk had worked for the Office of the
Comptroller of Currency in the investigation of petitioners, this same
agency was the prosecutorial agency that sought to bar petitioners
from the business. The court found that there were no circumstances
to suggest that this biased the ALJ in any way.
Third Circuit
•
Seidman v. Office of Thrift Supervision, Dep't of the Treasury, 37
F.3d 91 (1993). Petitioner, barred from participating in the banking
industry by the Office of Thrift Supervision, challenged the
determination of the office on the grounds that the director had the
authority to authorize the investigation of charges, determine
whether charges should be brought, issue notice of charges, and
make final determinations about the charges as to both law and fact.
“His argument implies that bias is inherent in such a process because
it permits a single person to act as prosecutor, investigator and
adjudicator as to the severe sanctions of section 1818(e). We think
Withrow implies the contrary and actual bias or a likelihood of bias
must appear if an otherwise valid administrative sanction is to be
overturned because of a denial of due process. Though in Withrow a
board, not a single person, combined the functions which the
Director of OTS possesses under section 1818(e)(1), we do not think
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Procedural Due Process – Combination of Functions
that distinction is controlling.” They went on to say, “Any interest
the Director might have in sustaining his own charges is no different
than the board had in Withrow.” Therefore, the petitioner failed to
overcome the presumption of honesty.
Fourth Circuit
•
Doolin Sec. Sav. Bank, F.S.B. v. FDIC, 53 F.3d 1395 (1995).
Bank’s FDIC coverage was removed when it refused to pay the
premiums set by the agency. He challenged the determination of his
“risk assessment” on which his premium was based and refused to
pay the increased premium. Petitioner challenged an administrative
hearing to determine the validity of the removal of his coverage
because, he said, the FDIC had a pecuniary interest in the outcome
of the determination in that it would receive higher premiums if the
ALJ found the risk assessment correct. Such institutional bias
cannot impugn the presumption of honesty of the ALJ.
•
Morris v. Danville, 744 F.2d 1041 (1984). Police chief, dismissed
for alleged misconduct, was granted a review hearing, but the final
decision lay with the City Manager who had also instituted the
investigation. Without a showing of “bias stemming from an
extrajudicial source,” the city manager was entitled to the
presumption of honesty and integrity and his decision did not violate
the petitioner’s due process rights.
Fifth Circuit
•
Ford Motor Co. v. Tex. DOT, 264 F.3d 493 (1993). Ford challenged
a statute in Texas that prohibited the manufacturer from selling its
own preowned cars online and the hearing before the Texas
Department of Transportation enforcing that law against them. It
was alleged that due process was violated because the same
employee, the director of the department “administers” both the
employee who brought the enforcement action and the employee
who acted as an ALJ in the hearing. The court stated that absent a
showing of pecuniary interest by the judge or that the judge had been
the target of personal abuse by the petitioner, the allegation of bias
had to overcome both the presumption of honesty and integrity and
the presumption that those making decisions affecting the public are
doing so in the public interest, which Ford failed to do.
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•
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047 (1997) (Leading
Case). “The problem of a procedural defect arises when the decision
makers have prejudged the facts to such an extent that their minds
are "irrevocably closed" before actual adjudication. Id. at 446.
Nevertheless, bias by an adjudicator is not lightly established. The
movant must overcome two strong presumptions: (1) the
presumption of honesty and integrity of the adjudicators; and (2) the
presumption that those making decisions affecting the public are
doing so in the public interest. Yet, both the Fifth Circuit and the
Supreme Court have recognized that a movant challenging the two
presumptions may convince a court that "under a realistic appraisal
of psychological tendencies and human weaknesses, conferring
investigative and adjudicative powers on the same individuals poses
such a risk of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be adequately
implemented.” Petitioner, the superintendent of the school district,
met this burden by proving that four of the school board members
who both instigated the termination action against her and
adjudicated her hearing had publicly acknowledged a prior grudge
against her.
•
Marine Shale Processors v. United States EPA, 81 F.3d 1371 (1996).
Petitioners challenged the refusal of the EPA to grant them a permit.
On review of the initial denial of the permit and during the
prosecution by the EPA of an action against the petitioners for
violation of permit requirements, two individuals gave rise to due
process concerns. One, Dr. Davis, had a role that placed him as
supervisor of both the enforcement action and the permitting
process. This was found to be unremarkable. Second, Ms. Sykes, an
attorney for the EPA both drafted the final determinations of fact
(made by Davis’ permitting investigation team) and conclusions of
law based on those findings that served as the EPA’s statement for
denial of the permit. She had also been involved in the enforcement
action both during pre-trial and early in the trial itself. The court
held that Ms. Sykes was entitled to the normal presumption of
honesty and stated, “MSP's burden is to persuade us that the use of
Ms. Sykes posed "such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to be
adequately implemented." Withrow, 421 U.S. at 47. In this case, Ms.
Sykes' made no decision at all. She had no power to decide whether
to grant MSP its permit, nor did she have power over those making
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that decision. Her role consisted entirely of articulating the thoughts
and decisions of others.”
Sixth Circuit
•
Benko v. Judges' Retirement Sys., 1998 U.S. App. LEXIS 7602 (6th
Cir. Mich. Apr. 15, 1998). Judge challenged determination of Judge
Retirement System’s determination of benefits on various grounds.
The court ruled that JRS had not violated the judge’s procedural due
process rights merely because the office of the attorney general both
sat on the decision making board and advised JRS as an advocate
opposing the judge’s action. The court ruled that, following
Withrow, there was no Due Process violation in the combination of
roles in a single agency. Further, they noted that no one attorney in
the AG’s office carried a dual role, one sitting on the decision board
while others advised JRS
•
Navistar Int'l Transp. Corp. v. United States EPA, 941 F.2d 1339
(1991). Petitioner challenged a denial by the EPA of a variance
regarding certain paint coating lines in its factory. The EPA had
denied the variance while at the same time prosecuting sanctions
against the company for violations of the regulations from which the
variance was sought. The court ruled that the mere fact that the
agency was both prosecuting the company and determining the
legitimacy of a variance request, was insufficient to meet the
petitioner’s burden of proof in claiming bias and a denial of due
process.
•
Cobb v. Yeutter, 889 F.2d 724 (1989). No due process violation was
found where a judicial officer, charged with reviewing the decisions
of ALJs in administrative actions brought by the department of
agriculture, effectively becomes the determination of the secretary of
agriculture, who was, in effect the party who brought the charges in
the first place. The judicial officer is specifically kept insulated
from both the ALJ and the secretary and makes his decisions on an
objective basis.” Finally, as the JO notes, "it has become fairly
routine in these types of cases for those respondents lacking a
meritorious defense to assail the administrative process, to claim
denial of due process, and to cite the judicial officer for bias." In re
Danny Cobb and Crockett Livestock Sales Co., P. & S. Docket No.
6587, slip op. at 74 (Feb. 13, 1989). These due process challenges
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have been consistently rejected by most courts; in fact, this court has
recently rejected arguments as to JO bias similar to those made by
Cobb.”
•
Kessel Food Markets, Inc. v. NLRB, 868 F.2d 881 (1989).
Employer challenged a determination by the National Labor
Relations Board on the grounds that the board was responsible for
both pursuing injunctions against employers who violate federal
labor laws and for deciding, through its own hearing process,
whether such a violation has, in fact occurred. The court held that
Withrow was dispositive of the issue of combination of functions
generally and without showing “special facts or circumstances which
make the risk of unfairness intolerably high,” the mere combination
of functions did not amount to a due process violation.
•
Utica Packing Co. v. Block, 781 F.2d 71 (1986) (Leading Case).
USDA brought a regulatory action against petitioner. The appointed
judicial officer who decided the case found against the USDA who
then removed the judge, appointed a replacement and sought a
rehearing on the issue. Though the court acknowledged that a party
who claims bias in an administrative hearing on the basis of a
combination of functions necessarily has a heavy burden to carry,
the fact that the agency had replaced a judge following an adverse
ruling and then sought a rehearing before a hand-picked replacement
was sufficient evidence of an intolerable risk of bias.
Seventh Circuit
•
Gradeless v. Vannatta, 15 Fed. Appx. 346 (2001). Due process
challenge to procedure by which petitioner was disciplined by
Conduct Adjustment Board of the prison authority. The same
member of the board, as petitioner’s “employer” (petitioner was a
“law advocate” under the supervision of one of the board members)
had initiated an investigation into petitioner’s alleged violation of
certain prison rules and then made the decision to “fire” him from
his position as lay advocate. While Whitford v. Boglino requires
that a decision maker be disqualified if she was “substantially
involved in the investigation of charges against an inmate,” the
petitioner still had to do more than merely allege bias under
Withrow, and so the case was remanded to give the petitioner a
chance to offer evidence of bias.
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•
Staples v. City of Milwaukee, 142 F.3d 383 (1998). There was no
due process violation where the same employee both participated in
the investigation of a city employee’s fight with another employee
and the adjudication of the pre-termination hearing. The court
specifically noted however that this was a pre-termination hearing
and not a full adjudicatory hearing, implying that this combination
might have been unacceptable, for example, at a post-termination
review hearing.
•
Panozzo v. Rhoads, 905 F.2d 135 (1990) (Leading Case). There was
no violation of terminated police officer’s due process rights in the
mere fact that the police chief both made the initial determination
that disciplinary action was needed and presided over the hearing for
cause. The court reasoned that the petitioner had to overcome the
presumption that the decision maker was “a person of conscience
and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances,” and that
petitioner had failed to do that.
Eighth Circuit
•
Gordon v. Hansen, 168 F.3d 1109 (1999). There was no violation of
due process where the director of the Nebraska Department of
Banking was vested with the final decision as to a determination by
the department that petitioner was not a licensed executive and, as a
result, his employer bank had to fire him in his capacity as CEO,
charges the department had been partially involved in investigating
in the first. The court ruled that this mere combination of functions
was insufficient to overcome the presumption of honesty vested in
the director.
Tenth Circuit
•
Messina v. City of Fed. Heights, 2000 Colo. J.C.A.R. 4799 (2000).
Plaintiff sued the city, his employer, following his demotion and
suspension because of allegations of sexual harassment. The same
city official both investigated the charges against him and presided
at the disciplinary hearing, but that was insufficient to overcome the
presumption of honesty.
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Eleventh Circuit
•
Holley v. Seminole County School Dist., 755 F.2d 1492 (1985). A
teacher challenged her dismissal on the grounds that the hearing
officer assigned to run the teacher’s review hearing was an attorney
regularly employed by the school board as an attorney as well as
some evidence that he, the attorney, had helped “prepare the case”
for the board. The court noted that “the case law generally allows
for an administrative tribunal on which sit actors who have played
both an investigative and adjudicatory role.” They then held that
because “Holley has not shown any actual bias on the part of
Hornsby, we hold that the fact that Hornsby sat as hearing examiner
at Holley's hearing does not violate due process.”
D.C. Circuit
•
Wildberger v. AFGE, 318 U.S. App. D.C. 194 (1994). There was no
violation of due process where disciplinary action against local
union president was investigated by the national union president who
also appointed a hearing board to review the charges and was vested
with the final decision to remove the local president. Absent
“special facts” indicating bias, the mere combination of
investigative, prosecutorial, and decision making power vested in the
union president by the union’s constitution did not violate due
process. The court specifically noted that the hearing in question
was not criminal in nature and that such a combination of function in
a criminal hearing would be a due process violation.
•
Chemical Waste Management, Inc. v. U.S. Environmental Protection
Agency, 873 F.2d 1477 (1989). A company challenged procedure
for administrative hearings concerning corrective actions taken by
the agency. They challenged the procedure on the grounds that
agency attorneys were employed as hearing officers “provided only
that they have "had no prior connection with the case, including the
performance of any investigative or prosecuting functions.” (EPA
internal regulatory standard). The court said, “The Supreme Court
has held that even the combination, in a single administrative
decision maker, of investigative and adjudicative functions--which
the EPA regulations plainly forbid--"does not, without more,
constitute a due process violation", rather, "the special facts and
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circumstances of the case . . . [must indicate] that the risk of
unfairness is intolerably high." Withrow v. Larkin, 421 U.S. 35, 58,
43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975) Moreover, in challenging a
particular adjudication on this ground, the complaint must
"overcome the presumption of honesty and integrity in those serving
as adjudicators" by showing "a risk of actual bias or prejudgment."
Id. at 47. In light of Withrow's stringent standard for an "as applied"
attack on procedures that allow the combination of investigative and
adjudicative functions, we find no basis for petitioners' broad facial
challenge, which by its nature deprives us of the particularized
information necessary to evaluate a claim of probable bias.”
• Porter County Chapter of Izaak Walton League, Inc. v. Nuclear
Regulatory Com., 606 F.2d 1363 (1979). Petitioners challenged the
constitutionality of NRC’s decision not to have a hearing to overturn
the decision of a regulatory director who refused to initiate a
proceeding to revoke a permit as requested by petitioners. They
claimed that the NRC was acting as a judge in its own case by
deciding the issue of the propriety of the decision of one of its own
employees. The court stated, “Even as to adjudications, the
combination in one administrative body of adjudicative with other
functions violates constitutional guarantees only when the
combination "poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to be
adequately implemented." Withrow v. Larkin, 421 U.S. 35, 47, 95 S.
Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975). See also Hortonville Joint
School District No. 1 v. Hortonville Education Ass'n, 426 U.S. 482,
96 S.Ct. 2308, 49 L. Ed. 2d 1 (1976); FTC v. Cement Institute, 333
U.S. 683, 700-03, 68 S.Ct. 793, 92 L.Ed. 1010 (1947). Any claim of
inherent bias must "overcome a presumption of honesty and
integrity in those serving as adjudicators." Withrow v. Larkin, 421
U.S. at 47, 95 S.Ct. at 1464.” No due process violation was found.
Summary
In the twenty five cases cited here comprising the majority of cases
following Withrow v. Larkin on the issue of combination of powers, only
two found actual bias. In the Valley case, actual bias was proven by public
statements by decision making individuals indicating a personal bias
against the petitioner. The second, Utica Packing Co. involved a
prosecuting agency that, following a ruling by an ALJ that was adverse to
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the agency, fired the ALJ and appointed a new judge and sought a rehearing
of the issue. Further, in seven of the cases, (none of them finding
impermissible bias) the court was dealing with a single employee who was
at least partially involved in multiple roles (Pathak, Greenberg, Seidman
(which dealt with the question explicitly), Marine Shale Processors,
Staples, Panozzo, and Messina. It is worth in particular noting that no bias
was found the Holley case from the Eleventh Circuit, in which an attorney
often hired to represent the school board was the presiding officer over a
hearing instituted by the board, but in which the attorney had had no role
prior to adjudicating it.
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