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.