Metropolitan News-Enterprise

 

Tuesday, April 17, 2018

 

Page 1

 

Court of Appeal:

Nonappearance at Hearing Is Not Necessarily A Failure to Exhaust Administrative Remedies

 

By a MetNews Staff Writer

 

Nonappearance at an administrative hearing on a grievance does not, in and of itself, constitute a failure to exhaust administrative remedies, the Fourth District Court of Appeal has held, reversing and remanding a denial of a writ of administrative mandamus.

The petitioner for a writ, John L. Ervin, had an aversion to being audio-recorded. He showed up with a court reporter at an Oct. 23, 2014 hearing at the San Diego Department of Child Welfare Services; his court reporter was barred under rules calling for audio recordings, only; he would not consent to being audio recorded and the proceeding was terminated.

A new hearing was set for Dec. 19, 2014. Ervin did not come and was telephoned; he was told the conversation was being recorded and hung up.

The matter, relating to allegations of emotional child abuse, was resolved without Ervin’s presence, taking into account documents Ervin had just submitted, as well as exhibits admitted at a 2013 hearing, the outcome of which, adverse to Ervin, had been invalidated by a Superior Court judge based on the hearing officer’s refusal to hear testimony from his children.

Ervin sought a writ in San Diego Superior Court to contest the 2014 decision.

Irion’s Opinion

Reversing the 2016 determination by San Diego Superior Court Judge Eddie C. Sturgeon that relief was barred by virtue of a failure to exhaust administrative remedies, Justice Joan K. Irion of Div. One said in an opinion filed Friday, and not certified for publication:

“Ervin requested and received a grievance hearing; on the present record, the fact that he chose not to attend a hearing does not mean that he failed to participate in the administrative process. On remand, the trial court should reconsider the briefing and related documentation in support of and in opposition to Ervin’s petition and rule on the merits of the issues presented.”

She explained:

“Very simply, Ervin did not refuse to participate. All of the evidence Ervin had—namely, the 25 exhibits from the First Hearing and the two additional exhibits submitted the week prior to the Third Hearing—was presented and considered at the Third Hearing. Ervin merely decided that he would not attend the continued proceedings in person. Based on the entire record of the administrative proceedings—not solely on the fact that Ervin did not personally appear at the Third Hearing—we conclude that Ervin participated sufficiently to have exhausted his administrative remedies. Any other conclusion would imply a requirement that a complainant make an oral presentation at the hearing and a punishment (an automatic failure to have exhausted administrative remedies) for a complainant who does not.”

Authority Not Cited

Irion continued:

“To the extent there is a requirement that a complainant personally attend a grievance hearing, the trial court did not cite such a requirement, the County did not advise us of such a requirement, and our independent research has not disclosed such a requirement.”

The case is Ervin v. County of San Diego, D072057.

On May 6, 2014, Ervin filed a civil rights action in the U.S. District Court for the Southern District of California based California’s alleged abridgement of his right to due process by listing him on the Child Abuse Central Index. The matter was placed in abeyance pending resolution of the matter in San Diego Superior Court and was reopened following Sturgeon’s denial of the writ petition.

Ervin filed an amended complaint on Friday. In both state and federal court, he is representing himself.

 

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