Metropolitan News-Enterprise


Tuesday, May 7, 2002


Page 3


System of Choosing County Hearing Officers Violates Due Process—S.C.


By KENNETH OFGANG, Staff Writer/Appellate Courts


A county may not choose hearing officers for regulatory cases under an ad hoc system that gives those officials a financial incentive to rule in favor of the county, the state Supreme Court ruled yesterday.

The justices unanimously agreed with a Fourth District Court of Appeal panel, which held that a San Bernardino County massage-parlor operator had been denied due process by having his license-revocation hearing assigned to a factfinder appointed by the county counsel.

But six of the seven justices went further than the Court of Appeal, saying that any system in which the hearing officer’s prospects of future employment lie in the unbridled discretion of a local government which is a party to the dispute is unconstitutional.

The immediate beneficiary of the court’s ruling is Theodore L. Haas. County officials, who have been trying to lift his license since an employee allegedly bared her breasts and offered to have sex with an undercover sheriff’s deputy eight years ago, are likely to give up now, Haas’ lawyer said.

The attorney, Roger Jon Diamond of Santa Monica, said he thought it was “a slam dunk” that the Court of Appeal would be upheld. But he was particularly gratified, he said, that the justices agreed with him that the ad hoc system is a constitutional affront even if the county counsel doesn’t personally select the hearing officer.

Diamond praised the justices for rejecting the arguments of the California School Boards Association, the California State Association of Counties, and more than 100 cities, that the abolition of ad hoc hearing officers would “wreak havoc” with the administrative process. “Guess what, justice comes with a price,” Diamond commented.

The county’s lawyer, Deputy County Counsel Alan Green, said complying with the decision would be “a major inconvenience,” but not a “catastrophe.”

Justice Kathryn M. Werdegar, writing for a six-justice majority, offered several suggestions as to how an acceptable system might be structured. The county could establish a permanent, independent hearing department; contract with the state Office of Administrative Hearings; use a rotating panel; appoint hearing officers for a finite period of time; or bar any hearing officer from serving again for a specified period of time, Werdegar suggested

Any of the Werdegar suggestions could, as a practical matter, be adopted by county supervisors, Deputy County Counsel Green said.

As for Haas, the county lawyer did not rule out another attempt to pull his license.

Haas had two administrative hearings. After the first hearing officer recommended his license be revoked, the Board of Supervisors concurred, but a Superior Court judge granted a writ of mandate because Haas wasn’t notified the matter was coming before the board.

When the board voted for revocation the second time, a judge granted another writ based on the board’s failure to consider the audiotape record of the hearing, which had by this time disappeared.

The county issued a new license, and simultaneously revoked it. Haas brought another administrative appeal, and a new hearing officer, San Bernardino real estate lawyer Abby Hyman, was appointed.

The ordinance under which she was chosen allows the Board of Supervisors to conduct hearings itself, or to appoint a hearing officer. In practice, the board has delegated the selection of hearing officers to the county counsel.

Diamond asked Hyman to recuse herself on the ground that her appointment by the county counsel, whose office represented the adverse party, violated Haas’ right to an impartial hearing officer. Hyman responded that she had not heard any other matters, and had no specific plans to do so, although neither she nor Green ruled out the possibility.

Werdegar, in an opinion joined by all except Justice Janice Rogers Brown, likened the ad-hoc system to the fee system of compensating judges, which has been held unconstitutional by federal appeals courts and the high courts of other states. Under that system, judges of courts of limited jurisdiction were paid a fee for each case they heard, creating what the appellate courts said was an incentive for judges to rule for prosecutors and plaintiffs in order to spawn more business.

The issue isn’t the integrity of individual decisionmakers, the justice explained, but rather the existence of a “substantial pecuniary interest” in the outcome of the matter submitted for decision.

Under San Bernardino Countyís system, Werdegar reasoned, “while the adjudicator’s pay is not formally dependent on the outcome of the litigation, his or her future income as an adjudicator is entirely dependent on the good will of a prosecuting agency that is free to select its adjudicators and that must, therefore, be presumed to favor its own rational self-interest by preferring those who tend to issue favorable rulings.”

Brown wrote separately, agreeing with the Court of Appeal that the direct involvement of the county counsel in the selection of the hearing officer violated due process.

That involvement, however, does not “warrant the wholesale dismantling of a selection process utilized by local government entities throughout the state,” she wrote. The majority, she scolded, was relying on “an overwrought interpretation of the fee system cases.”

The case is Haas v. County of San Bernardino, 02 S.O.S. 2204.


Copyright 2002, Metropolitan News Company