Archive for the ‘Due Process’ Category

Due Process rights for property owners live again in the 9th Circuit

Thursday, November 1st, 2007

Since 1996, property owners in the 9th Circuit have not been able to state a claim for violation of due process based on regulations claimed to be irrational.  That was the year that the court issued its en banc decision in Armendariz v. Penman, 74 F.3d 1311 (9th Cir. 1996), holding that such claims were covered by the Takings Clause of the Fifth Amendment and therefore could not form the basis of a substantive due process claim.

Two years ago, however, the United States Supreme Court ruled in Lingle v. Chevron, 544 U.S. 528 (2005), that an allegation that a local property regulation failed to “substantially advance a legitimate government interest” was a due process, rather than a Takings, claim.

Today, the 9th Circuit caught up to this ruling by the Supreme Court.  In Crown Point Development v. City of Sun Valley, the 9th Circuit recognized that a property owner’s claim that government regulation of property is irrational is not a claim that can be stated under the Takings Clause.  Thus, the court recognized that its decision in Armendariz can no longer be used to prevent property owners from stating a cause of action based on violation of substantive due process rights.

Congratulations to my former colleague at Pacific Legal Foundation, Dave Breemer, for his victory in this case.  [NOTE:  The Court’s criticism of Crown Point for failing to make the argument based on Lingle in the District Court does not apply to Dave — he did not take over representation until after the District Court had issued its decision.]

Cal. Supreme Court to review appearance of impropriety case

Wednesday, October 31st, 2007

The California Supreme Court has granted review in Morango Band of Mission Indians v. State Water Resources Control Board to decide whether a due process claim against an administrative tribunal can be sustained on a showing of only an appearance of impropriety.

I noted this case when it was decided by the Court of Appeal in August.  According to the Court of Appeal, the problem is created when attorneys from the Attorney General’s office serve both as “prosecutors” and “legal advisors” to the board, albeit not in the same case.  Nonetheless, since the board is in the position of relying on the deputy attorney general’s legal advice in one case, parties appearing before the board with that same deputy attorney general serving as prosecutor may understandably question the fairness of the proceeding.  If the board relies on that attorney for legal guidance, will it give special credence to his or her legal position as a prosecutor?

The California Supreme Court’s press release lists the issue for review in the case as follows:  “May a staff attorney for an administrative agency serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter, without violating the due process rights of the parties that appear before the agency.”

Stuart Somach of Somach, Simmons & Dunn (Sacramento) represents the plaintiff in the case and Deputy Attorney General Matthew Goldman is listed as lead attorney representing the Board.  Review was granted on October 24, 2007.

As I noted in my earlier post, this is a significant case in state administrative law.  Generally, one cannot state a due process objection based solely on an “appearance” of impropriety in an administrative proceeding, but must instead establish an actual conflict.  If the Court of Appeal decision is upheld, a number of California agencies will have to alter their practices.

Appearance of Impropriety in Adminsitrative Hearing Triggers Due Process

Thursday, August 9th, 2007

Morongo Band of Mission Indians v. State Water Resources Control Board

Nonattorneys are often surprised that adminsitrative agencies serve as both prosecutor and judge in an administrative hearing.  But what happens when the “prosecutor” is also the legal adviser for the “judge”?  Picture the District Attorney in your criminal case acting as the research attorney for your judge for other prosecutions!!


California’s Third District Court of Appeal ruled (Justice Butz wrote the opinion in which Presiding Justice Scotland joined) that Morongo’s due process rights were violated because the state attorney prosecuting Morongo before the Water Board was serving at the same time as a legal adviser to the Board in a different case.  The court’s ruling clearly holds that a showing of actual bias is not required.  Instead, due process is violated where there is an appearance of impropriety.


The Water Board’s practice was described in Justice Robie’s dissent: 

“In a water right enforcement proceeding (such as the proposed revocation of a license under Water Code section 1675), the Board assigns some members of its staff to serve on an “enforcement team” — the role of which is to appear before the Board as a party — and other members of its staff to serve on a “hearing team” — the role of which is to assist Board members in conducting the hearing and formulating a decision.  A separate attorney is assigned to each team.  Members of the enforcement team are screened from inappropriate contact with members of the Board and members of the hearing team by application of the rules against ex parte communications contained in the administrative adjudication provisions of the Administrative Procedure Act.  (See Gov. Code, §§ 11430.10-11430.80.)”

The panel majority found these two roles for an attorney “ethically incompatible,” and rejected the Water Board’s complaint that it did not have the funding necessary to separate their staff permanently.  “We refuse to adjust the minimum standards of due process to accommodate the Water Board’s asserted budgetary restraints.”

This decision may well have a significant impact on the operation of a number of administrative agencies in California, and thus it is a likely candidate for Supreme Court review.  One interesting point in the decision is the Court of Appeal’s citation to a denial of review in a prior case (Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810) as a signal that the Supreme Court “is comfortable” with the rationale employed in this decision.  The Court also emphasized that review was denied in that case notwithstanding an amicus letter from the Attorney General urging review.