4 Cal. App. 5th 1165
Cal. Ct. App.2016Background
- Drakes Bay Oyster Company operated a mariculture facility on federal land in Drakes Estero; its 40-year permit lapsed in 2012 and the facility later closed after federal proceedings.
- The California Coastal Commission issued 2013 enforcement orders requiring cessation of unpermitted development, removal of specified items, permit application, and other remediation measures after staff prosecutors recommended those orders at a Commission hearing.
- Drakes Bay filed suit in Marin County challenging the 2013 Enforcement Orders; the Commission filed a cross-complaint seeking injunctive relief and penalties; the parties’ matters were consolidated.
- Three Commission enforcement staff (Haage, Johnston, Helperin) had prosecuted the administrative enforcement matter and thereafter participated as Commission client representatives in the superior court litigation.
- Drakes Bay moved for a preliminary injunction and to disqualify those staff from participating or communicating confidentially with the Commission, arguing their prior prosecutorial role violated due process when they later assisted the Commission in litigation.
- The superior court denied the motion; the Court of Appeal affirmed, holding that rules protecting impartiality of administrative decisionmakers (separation of prosecutorial/advisory roles and ex parte prohibitions during adjudication) do not bar agency staff from aiding the agency as a party in subsequent litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether enforcement staff who prosecuted Commission enforcement orders can be disqualified from advising or representing the Commission in subsequent court litigation on due process grounds | Staff’s prior prosecutorial role and ex parte contacts create an unacceptable risk of bias; Morongo/Quintero principles require separation and bar their participation | Those cases protect impartiality of administrative decisionmakers during adjudication; once litigation is filed the court—not the agency—is the decisionmaker, so staff may assist the agency as a party | Denied: No due process violation as a matter of law; staff may assist the Commission in litigation because the risk to an administrative decisionmaker’s impartiality no longer exists |
| Whether ex parte communication prohibitions extend to post-adjudication litigation such that staff cannot confidentially advise the Commission | Ex parte rules and APA principles limit contacts across the board and should bar communications while related agency actions remain possible | Ex parte rules protect administrative adjudicators during decisionmaking; they do not preclude agency-lawyer communications in defense of a final agency decision in court | Denied: Ex parte concerns do not control litigation context; speculative future agency action does not bar present staff assistance |
| Whether Quintero/Morongo create a per se rule barring prosecutors from later advising the agency in litigation | Quintero/Morongo support broad separation preventing any prosecutor-to-advisor crossover, including in later litigation | Morongo rejects a per se rule; separation concerns apply to protecting administrative adjudicators, not to agency participation as a litigant | Denied: Morongo rejects per se separation; precedent is limited to preserving impartiality of administrative decisionmakers |
| Whether the superior court erred in finding staff were not acting as litigation counsel and thus were not subject to advocate-witness rules | Staff appearances in register of actions show they acted as counsel; should be disqualified under advocate-witness doctrine | Commission’s counsel declared the enforcement staff were client representatives, not litigation counsel; superior court findings supported by evidence | Affirmed: substantial evidence supports the court’s finding that enforcement staff were not serving as counsel in the litigation |
Key Cases Cited
- Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal.4th 731 (Cal. 2009) (due process protects impartial administrative tribunals; no per se bar on dual advisory/prosecutorial roles absent evidence of bias or unacceptable risk)
- Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 40 Cal.4th 1 (Cal. 2006) (ex parte communications from prosecutors to administrative decisionmakers during pendency of adjudication are improper)
- Quintero v. City of Santa Ana, 114 Cal.App.4th 810 (Cal. Ct. App. 2003) (appearance of bias where prosecutor had extensive ongoing advisory relationship with personnel board)
- Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81 (Cal. Ct. App. 2003) (due process violated where city attorney who advocated also significantly advised the hearing officer)
- Howitt v. Superior Court, 3 Cal.App.4th 1575 (Cal. Ct. App. 1992) (expresses concern about county counsel serving as both advocate and neutral adviser to tribunal without screening)
- Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) (background federal litigation regarding federal decision not to renew occupancy agreement at Drakes Estero)