Metropolitan News-Enterprise


Tuesday, February 10, 2009


Page 3


High Court Rejects Due Process Challenge Over Attorney’s Dual Role

Rules Counsel Can Advise Agencies and Prosecute Matters Before Them if Unrelated


By STEVEN M. ELLIS, Staff Writer


The State Water Resources Control Board did not violate due process when it assigned an attorney serving as its advisor in another matter to simultaneously prosecute a water license revocation proceeding before it, the California Supreme Court unanimously ruled yesterday.

Reversing the Court of Appeal, the justices reasoned that no evidence showed the attorney’s functions were insufficiently separated or that she was more than just one of a group of legal advisors the board could consult, and rejected an Indian tribe’s challenge to proceedings to revoke its license to divert water from springs in Riverside County for irrigation.

The board initiated proceedings against the Morongo Band of Mission Indians in 2003 on the grounds that the tribe or prior license holders had failed to beneficially use the water for an extended period and had violated license terms by using it for unauthorized purposes.

After the board issued a notice of public hearing identifying Staff Counsel Samantha Olson and others as members of the enforcement team prosecuting the case, the tribe sought their disqualification because team members had concurrently advised the board in other matters.

At the time, Olson was also acting in an advisory capacity as a member of a hearing team in a separate matter involving the American River, and the tribe—citing the then-recent Court of Appeal decision in Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810—asserted that the dual prosecutorial and advisory roles created “an inappropriate and impermissible appearance of unfairness and bias sufficient to compel…removal.”

When the board denied the request, the tribe sought a writ of mandate compelling Olson’s disqualification, contending her representation of the board violated the tribe’s due process rights to a fair tribunal under the federal and state constitutions.

Sacramento Superior Court Judge Judy H. Hersher granted the request, and a divided panel of the Third District Court of Appeal affirmed in an opinion by Justice M. Kathleen Butz, who was joined by Presiding Justice Arthur G. Scotland.

But Justice Joyce L. Kennard wrote for the Supreme Court that “any tendency for the agency adjudicator to favor an agency attorney acting as prosecutor because of that attorney’s concurrent advisory role in an unrelated matter is too slight and speculative to achieve constitutional significance.”

Noting that the state’s Administrative Procedures Act—and a similar federal act—require the internal separation of prosecutorial and advisory functions on a case-by-case basis only, Kennard rejected the Court of Appeal’s adoption a per se approach because, unlike in Quintero, the board had maintained an internal separation of functions and Olson was only one of a number of staff attorneys the board could consult, rather than its sole or primary advisor.

“The Court of Appeal’s stated rationale for its per se rule is that ‘[h]uman nature being what it is, the temptation is simply too great for the…Board members, consciously or unconsciously, to give greater weight to Attorney Olson’s arguments by virtue of the fact she also acted as their legal adviser, albeit in an unrelated matter,’” she wrote.

However, Kennard continued, quoting Justice Ronald B. Robie’s dissent in the Court of Appeal:

“[T]he [Court of Appeal’s] relationship-bias reasoning ‘applies far beyond the situation where an attorney is simultaneously acting as an advocate before an administrative board and an adviser to the board in an unrelated matter.’ That reasoning would apply also when the prosecuting agency attorney has acted as an adviser to the agency adjudicator in an unrelated matter at any time in the past….

“In construing the constitutional due process right to an impartial tribunal, we take a more practical and less pessimistic view of human nature in general and of state administrative agency adjudicators in particular.

“In the absence of financial or other personal interest, and when rules mandating an agency’s internal separation of functions and prohibiting ex parte communications are observed, the presumption of impartiality can be overcome only by specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias.

“Unless such evidence is produced, we remain confident that state administrative agency adjudicators will evaluate factual and legal arguments on their merits, applying the law to the evidence in the record to reach fair and reasonable decisions.”

The case is Morongo Band of Mission Indians v. State Water Resources Control Board, 09 S.O.S. 752.


Copyright 2009, Metropolitan News Company