*1 No. 31237. Jan. 1981.] [L.A. Petitioners, al., et S. ANDREWS
ROBERT BOARD, Respondent; LABOR RELATIONS AGRICULTURAL AFL-CIO, AMERICA, WORKERS OF FARM UNITED in Interest. Party Real
Counsel Aronzon,
Cohen, Broker, Brown, Freeman & Clark Paul S. Haight, Dickson, Brown, Roy Weatherup Bonesteel & G. Rigg Petitioners.
Dressier, Stoll, Wolfe, Hersh & Sarah W. Ronald A. Quesenbery, Curiae Zumbrun and Robert K. Best as Amici on behalf of Petitioners. Rokeach, Lake, Medeiros, Warren, Ellen Manuel Deborah Ruth M. Stone, Delizonna, Sullivan, Dennis M. Marvin J. Daniel G. J. Harry Brenner and Thomas M. Sobel for Respondent.
Fred Okrand and Williams as Amici Curiae on behalf of Gary Respondent. Alcala, Francis E.
Dianna Marco E. Carlos M. Lyons, Lopez, Garcia, Chavez, Fernandez, Flores, Carmen S. Daniel A. Federico G. Boone, Nathan, Cohen, N. W. Daniel Jerome Sanford Ellen J. Eggers, Dalzell, II, Rothner, Joaquin, Tom Linton E. Michael Heumann Glenn for Real in Interest. Kirsten Zerger Party Deborah L. Peyton Pearl, Richard M. Meyerhoff, Albert H. McCarthy, H. Timothy Berzon, Altshuler, Saucedo, Altshuler & Vilma S. Fred H. Valeriano Bailer, Contreras, Vera, Ronald T. John H. Martinez, Joel G. Morris J. Hewitt, Erickson, & Erickson, Henry Beasley Alice M. Beasley, Aaronson, Amsterdam, Hewitt, G. Anthony Lois Mark N. Salisbury, Jr., Mendez, Falk, Charles J. Miguel A. Ephraim Margolin, Jerome B. Wallach as Amici Curiae on be- Near and E. Robert Meyers, J. Gary in Interest. half and Real Party of Respondent
Opinion 1160.8, section seek a
MOSK, J. petitioners Pursuant to Labor Code La- writ aside and order the Agricultural review to set a decision (Board). petition bor Because we granted petitioners’ Relations Board *5 to com- to the which a of bias sufficient upon finding explicate grounds based, we will recite those facts pel disqualification may (ALO) law officer to the contention that the administrative relevant erred himself. when he failed disqualify the proceeding by counsel initiated underlying
The Board’s general that section 1160.2 alleging to Labor Code filing complaints pursuant the Agricul- of workers covered petitioners—agricultural employers (ALRA)—had committed various unfair tural Relations Act Labor held union election representation labor in connection with a practices petitioners counsel employees. general charged among petitioners’ with nine of their demoting employees, with and unlawfully discharging and employees, and of interrogation in unlawful surveillance engaging with employees’ rights the interfering with restraining otherwise the complaint objections under ALRA. The counsel’s general America, AFL-CIO Workers of the United Farm election filed by Union, were consoli- Teamsters (UFW), to the which lost election an ALO. before dated for evidentiary hearing ALO, pursu- as a temporary Menocal
The Board Armando appointed which took the hearings to conduct ant Code section to Labor time, was At that Menocal 1976. January in December 1975 and place Advocates, Inc., in- a public with Public in attorney private practice first learned of Petitioners’ counsel firm in San Francisco. terest law He commenced. hearing one hour before this fact approximately Administra- California Menocal under moved to immediately 20230.4, on the then current Code, regulation section tive title request question counsel’s ALOs. After denying disqualification make an oral counsel to the ALO permitted him about his employment, as follows: affidavit affidavit would be this that I My understand Mr.
“Mr. Brown: Menocal is Public Advocates which is a firm that I under- employed by stand does a deal of good work the area of discrim- employment ination. I believe also do work on behalf of labor unions. It is they my do not work on behalf I understanding they under- employers. stand the Officer is involved in an Hearing presently employment race, Blacks, Orientals, discrimination case part involving involving and Mexican-Americans the J. C. Penney Mr. Company, Menocal has been involved that case and on spring those and other which I am sure I could find grounds grounds possibly out with further which into the cases Public Advocates inquiry specific bias, is now that there is and I do handling, appearance certainly not feel that client can my get unbiased that he type hearing entitled to.” motion,
After on the the ALO ruled as follows: hearing argument Brown, I I it’s its “Mr. motion. don’t believe sufficient on deny your Union, face. I Farm represented have never the United Workers Teamsters Union or other union. I don’t believe I’ve ever any represent- *6 in ed a or farmer back to the I was grower although, thinking years there is a chance that I once private practice, represented grower with that weren’t A against peaches ripe.... house packing dealing race is not the same as thing discrimination case involving employment a suit solely a labor union such as we have here and not dispute Indeed, case, both in that we a class of represent management. management personnel.” and non-management deci- recess, the disqualification petitioners appealed a week’s During petitioned then ruling. They an adverse and received sion to the Board District, a writ of certiorari Appellate Fourth Appeal, the Court resumed, petitioners When the hearings denied. which was summarily of the fol- filing ALO with the their motion to renewed of counsel: written declaration lowing Califor- law the State of practice I licensed attorney
“1. am above matters. Sons in the Sam Andrews’ nia and represent within Menocal, officer the hearing “2. I believe Armando therefore, quali- and matters, bias personal professional has a 20230.4 to act as the Section fied within the meaning Regulation for the reasons: following hearing officer 8, 1975, that he is
“(a) pres- me on December Mr. Menocal informed Advocates, firm. a San Francisco law with Public ently employed Advocates, sheets for Public true “(b) The 1974 and 1975 Docket herein incorporated and correct of which are attached hereto and copies A, B, regularly repre- as Exhibits and C establish that Public Advocates and farm workers against agricultural sents Spanish-surnamed persons well governmental agencies other as as employers, private employers, law suits and matters challenging variety employment other legal Attention is called to policies. national farm labor practices including 250 Farm Workers vs. Labor and the comments attached Secretary of thereto as set forth at 12 of Exhibit ‘C.’ page
“(c) 8, 1975, me that since On December Mr. Menocal informed he has been involved in representing Spanish-surnamed persons of J. C. practices Penney Company. a suit challenging employment made to the comments on Sebastian Reference is hereby specifically Exhibit ‘A’ at- as set forth at item 12 of Inc. Penney Company, J. C. tached hereto. is true foregoing
“I declare under penalty perjury correct. California, December 1975.” at Los on Angeles,
“Executed “I find material, concluded: do not the ALO Upon examining sufficient to show attached to are declaration or the exhibits that the *7 motion is denied.” The disqualification. for bias or any grounds labor practice the merits of the unfair proceeded hearings adverse to peti- recommended decision ALO filed a and the charges, issues. The Board issued its final decision tioners on most of the major issue; it the essentially adopted without the treating disqualification The Board did declare that ALO’s and recommendations. findings review of the entire record in independent had considered and made the case. make a number of petitioners supplementary argu
Although ments, their contention that the ALO major we will address only himself to the Board’s pursuant failed to improperly regula will we conclude that contention lacks tion 20230.4. As appear, both and factual legal support.
I. the dis- At the time the 20230.4 hearings, regulation governed It of ALOs. qualification provided: Law When Conducting Administrative
“Disqualification Officer a proceed- law officer withdraw from Hearing. may An administrative the disqualified. Any party may request whenever he deems himself ing his and be- designation, law officer at time any following administrative decision, withdraw on bias or ground personal fore of his filing of the discovery with him promptly upon disqualification by filing fact, forth in detail the matters alleged affidavit alleged timely setting If, in the of the ad- opinion for disqualification. to constitute grounds and is is filed with due diligence ministrative law officer such affidavit face, himself and withdraw shall forthwith disqualify sufficient on its he law officer does not disquali- If the administrative from proceeding. rule upon he shall so proceeding, himself and withdraw from fy with the record, his ruling proceed hearing, for stating grounds closed, his deci- or, with issuance of proceed if the has he shall hearing sion, with to review of respect and the of section 20220.2 provisions officers, shall thereupon apply.”1 of administrative law rulings 20230.4 was the analogue Petitioners first contend that regulation accord- interpreted and should Code of Civil Procedure section 170.6 1 regulation Regulation superseded by 20263 effective October 1976. 20230.4 was differences, Although regulations procedural the substantive standard have minor language defining appears It that the disqualification essentially the same. directly regulation 20263 has been taken disqualification standard for substantive 170, subdivision 5. from Code of Civil Procedure section
789 The an ALO. disqualify automatically them the to right to ingly give Code of such construction. lend no support texts of the two sections that or any party in substance section 170.6 provides Civil Procedure a mo- to make action has one opportunity to a civil or criminal attorney that the an affidavit supported by disqualify assigned judge, tion to thereof the interest or attorney is such against party judge prejudiced an tri- impartial he obtain that the affiant cannot or believes cannot so form, recuse al; must judge and in proper if the motion is timely to an- and the case must be reassigned himself without further proof on Judicial v. Commission McCartney As we stated in other judge. 260, 512, 526 P.2d (1974) 12 531 Qualifications Cal.Rptr. Cal.3d [116 Court (1977) 19 Cal.3d Solberg in Superior 268], reemphasized 460, 182, 561 “‘It is well 1148], recognized P.2d Cal.Rptr. [137 that in Civil Procedure section 170.6 the enacting Legislature Code of guaranteed right disqualify judge. to litigants extraordinary faith prejudice is “automatic” the sense right good belief sufficient, re- alone of facts actual not proof showing prejudice being (Italics in quired.’” original.) It extraordinary right. required 20230.4 no such
Regulation provided ALO, when, in the opinion the ALO to himself disqualify bias or disqualifica- the affidavit forth the setting grounds personal 20230.4, Thus, although tion was sufficient on its face. under regulation bias, he was the ALO was not to contest the permitted allegations himself unless in his opinion moving compelled then, the regula- had made a facie of bias. party prima showing Clearly disqualification tion did not afford a automatic party virtually 170.6. We must therefore Code of Civil Procedure section provided by bias.2 the facts here constitute alleged showing ascertain whether II
Petitioners that a for bias was the ALO’s imply ground practice with individual of law a firm which in the had farm past represented workers a suit of Labor and which against Secretary engaged Mexican-Americans. discrimination suits on behalf of employment 2Many interpreting of the case the word bias involved Code of Civil Pro authorities “by reason of bias disqualification cedure section or subdivision which allows for prejudice.” analyzing question, present purposes Without we will assume for against prove prejudice. prejudiced easier to “A man cannot be another bias than him, (Ev being being may prejudiced.” without without biased but he be biased 662].) Cal.App. P. Superior ans v. Court
790 this, it are to infer that the ALO has some philosophi-
From we appears for him to cal or inclination that would make political impossible Even if the nature of a lawyer’s practice conduct hearings impartially. outlook,3 such evi- could evidence of his or social political be taken as Therefore, dence, than will is irrelevant to bias. rather prove as appear, his firm has partici- of the cases in which the ALO or review nature those cases viewpoints might possibly or what pated attempt identify that make doing reaffirm the general principles we will suggest, simply so unnecessary. with the is not synonymous trier of fact impartial
The to an right to the general subject indifferent completely claimed to a trier right Court As stated in Evans v. Superior before him. matter of the claim the men- 372, 380, bias refers “‘to the word Cal.App. supra, to the litigation, towards party tal of disposition judge attitude or matter subject entertain regarding views that he may and not to any context, Davis has written Professor In administrative involved.’” issues of law of view about point sense of crystallized that “Bias for disqualification.” no ground deemed universally almost policy 131; (1st 1958) also see ed. (2 Davis, p. Law Treatise Administrative 1429, L.Ed. (1941) 313 420-421 Morgan United States U.S. [85 Institute v. Cement Trade Comm’n. 1434-1435, 999]; 61 S.Ct. 1034-1036, This 793].) 68 S.Ct. 700-703 L.Ed. U.S. the fact that established, recognition merely rule long practical preconceptions will attitudes and role have in a anyone acting judicial him. come before issues that may and social legal toward some of of bias relative discarded stereotype revive the same Petitioners Frank addressed Jerome that Judge officer judicial disqualifying indeed, courts must, try fail unless our ago: “Democracy many years in im- lacking before a judge be no fair trial and there can cases fairly, If, however, ‘partiality’ ‘bias’ and and disinterestedness. partiality the mind of the of preconceptions to mean the total absence defined one ever will. a fair trial and no one has ever had then no judge, We are born mind, blank piece paper. is no infancy, human even at informal, education, formal and and the process with predispositions; im lawyer is an a client to a the values of persuasively imputing 3Amici assert That view is conclusions. dangers of erroneous inevitably fraught with proper exercise EC Responsibility, Professional Code of with the American Bar Association consistent clients and 2-27, “unpopular accept urges every lawyer representation which ” feelings [r]egardless personal of his .... causes ... situations, which affect them in at judging in all men creates attitudes which, instances and particular which precede reasoning titudes Interests, view, definition, therefore, points are prejudices.... death dis- yields complete the essence of living. Only are preferences, *10 utter ‘indifference.” for such dispassionateness signifies passionateness, 650, 651-652.) (2d 1943) 138 F.2d (In Cir. re J. P. Linahan find a officer who is judicial Not would it be to only extraordinary issues, the of such a rare in- discovery without a on all thought totally an adverse reflection on his suggest tellectual eunuch would in a case in which he refused to recuse example, For qualifications. he as an assistant had attorney general previously himself even though involved, issues Justice Rehnquist his on the legal opinion expressed stated, mind at the time he the Court was joined “Proof that a Justice’s constitutional would adjudication a rasa in the area of tabula complete (Laird not lack of bias.” v. Tatum be evidence of lack of qualification, 50, 59, (memoran- 824, 93 S.Ct. (1972) 835 L.Ed.2d 409 U.S. 7] [34 J.).) it would be untenable for this court Similarly, dum of Rehnquist, ALOs who have never about or thought to insist selection of upon social, or issues that legal an on the broad economic expressed opinion dispute. underlie a labor inherently
Therefore, if the attributed to an ALO could be in- viewpoint even his or his clients—which we do practice ferred from the nature of legal A not concede—that would be no for trier of ground disqualification. fact with or views cannot be on expressed political legal disqualified in controversial cases. The more or so- politically that basis alone even ALO, matter, most sensitive more is that like likely a cially citizens, an on the is- opinion will have at some time reached intelligent of a on legal system dependent sue. This is an unavoidable feature robots for resolution. dispute human rather than beings
III. ALO or views of an legal arguendo, political Even assuming, hold, bias, as requested by of we cannot could result in an appearance for the disquali of bias is a ground that a mere petitioners, appearance 170, section Code of Civil Procedure fication a officer.4 judicial course, Procedure section Code of Civil statutory mandate of 4Of because of the- bias can appearance of extraordinary right disqualify, an granting litigants 170.6 to (Solberg Superior section. ground judge pursuant to that be a for the removal of a 182.) supra, Court 19 Cal.3d “when it is made requires disqualification appear prob-
subdivision that, able reason bias or fair justice judge such prejudice trial be impartial Despite imprecise cannot had before him.” some in several no court in California has language Appeal opinions, Court of 5, to appearance ever section subdivision mean that an interpreted existence, bias, the sense belief its is a sufficient subjective all, after in the eye ground disqualification. Appearance, generally of the beholder. Ensher, set of the section was forth Alexander proper analysis Cal.App.2d Cal.Rptr.
& Barsoom v. Ensher must be disqualified, prejudice “In order for the judge 327]: impair sufficient particular party [citations] *11 it a trial so that that fair cannot judge’s impartiality appears probable (Italics added.) held.” The thus a two-tier inquiry be case suggests whether the bias is a sufficient by ground determining alleged party disqualification. for the has moving party first consists of whether inquiry deciding the bias the judicial facts to demonstrate of
set forth sufficient legally determination, or a re- that the officer judicial officer. After challenged such will it probable must still decide whether bias render viewing court words, In held that other that a trial cannot be before judge. fair impair impartiality.” “sufficient to the judge’s bias or must be prejudice established, will not been be sure, of bias has To be once existence hearing ap- trial or impartial fair and difficult to demonstrate Nonetheless, analysis helpful explaining pears improbable. never been and has cannot satisfied that the threshold determination of bias. of the mere appearance an allegation satisfied by challenged that demonstrate the A must concrete facts party allege and preju- or “Bias with bias prejudice. contaminated officer judicial clear averments.” must be established implied dice are never 102, (1967) 254 Cal.App.2d (Shakin Examiners v. Board Medical of Indeed, unilateral 274, 1398].) party’s A.L.R.3d 117 23 Cal.Rptr. [62 disqualifica- cannot be a ground of bias appearance of an perception which disgruntled a system we are to tolerate ready tion unless of administration orderly havoc with can wreak dilatory litigants be disqualified lightly should not “A judge tribunals. dispute-resolving (Mackie Dyer conclusions.” or mere or on frivolous allegations 366].) P.2d 400 (1957) Cal.App.2d 154 [316
793 Even the cases that speak of bias in loosely appearance judicial conduct no In hold less. Pratt v. Pratt 141 Cal. P. [184 956], this court reversed an order of the trial court because of the himself, failure to judge’s “The trial of a case stating, should fact, be fair in but it should also to be appear fair.” The ap pearance of unfairness resented in was properly Pratt the trial judge’s comment, the use of a regarding daughter impeach the testimony mother, her that “T don’t know that would anything condemn cli your ent in so my eyes (Id. as to on the completely put stand ....’” girl 250.) p. at Such is more than prejudgment testimony a mere appear bias; ance of it evidences actual bias. In etc. United Methodist Church v. Superior Pacific Conference of
Court Cal.App.3d Cal.Rptr. 44], court spoke of a reasonable appearance however, Here prejudgment. there again, was more involved than appearance prejudgment: challenged had judge written a letter actually to the parties during pretrial phase of the case “T believe stating, claims plaintiffs’ ... are meri torious and that will in all they at the probability prevail time of trial.’” (Id. 76-77.) at pp.
Thus, our courts have never
the
required
of a
disqualification
judge
unless the moving
has been able
party
to demonstrate
the ac-
concretely
tual existence of bias.5 We cannot now
exchange
established
principle for one as vague,
and laden
unmanageable.
with potential mis-
chief as an “appearance
standard,
of bias”
our
despite
deep concern for
the objective and impartial
of all
duties in
discharge
judicial
this state.
course,
5Of
there are some situations in
probability
which the
or likelihood of the ex
istence of actual
great
bias is so
disqualification
judicial
that
of a
required
officer is
preserve
integrity
the
legal system,
of the
even
proof
judicial
without
that the
officer is
actually
(See,
biased towards party.
e.g.,
(1972)
493,
a
Peters v.
407 U.S.
502 [33
Kiff
83, 93-94,
L.Ed.2d
92 S.Ct.
[discussing Tumey
(1927)
(71
v. Ohio
794 considerations, course, are to the foregoing equally applicable disqualification judicial officer the administrative In- system. deed, appearance of bias standard untenable in may particularly certain practice administrative For an unfair labor settings. example, factfinder, (Lab. proceeding the Board is the ultimate not the ALO. Code, 1160.3; Royal Co. v. Labor Relations Packing Agricultural § Bd. We Cal.App.3d Cal.Rptr. 870].) there- [161 fore see fail to how a mere belief in the ALO’s subjective appearance bias, bias, distinguished as from actual can either when prejudice party determinations, in- upon Board factual responsible making In the at dependent review of the record. case bar Board declared (See, did undertake such an of the record. independent review entire 682, 691 Bright Serenko e.g., Cal.Rptr. 263 Cal.App.2d 1].)
IV. status of Appellants temporary further contend in the disqualification ALO herein as a factor recognized should be bias due to the susceptibility poten of his increased analysis because However, no we know of tial influences a continuing legal practice. case, proposition have we been cited to that stands for any, nor disqualifica vulnerable officer is pro tempore peculiarly judicial before and practice tion law because he challenge engaged after his service. temporary public such board ... may appoint Code “The provides:
Labor section officers, em- officers, and other law administrative hearing attorneys, *13 for the necessary proper it time time find as from to ployees may this section to pursuant of its duties. performance Attorneys appointed the board board, for appear represent and at the discretion of the may, shall per- the board in All employees appointed by in case court. any manner without impartial and an objective form their duties It, of the board.” to the jurisdiction prejudice any party subject toward tempo- to use power the Board the is not that this statute disputed gives proper has deemed it then, the Legislature ALOs. rary Clearly as con- as long they capacity act a judicial to temporary employees The Leg- manner.” impartial “in and duct an objective themselves it ALOs than of temporary asked no more islature has thus have officers. We judicial from permanent demanded courts have ever in i prescribed than standard no a more authority apply rigorous ALO’s status to to be temporary enactment an legislative by allowing bias disqualification.6 an in a sufficient for showing used as element V.
Petitioners on face of ALO’s finally contend bias appears However, recommended decision. because contention findings foundation, rests on erroneous no need for us to exam- legal there ine the report. substance his
It is first asserted that bias be shown the fact that may by some of a officer’s are hearing findings supported by substantial evidence. al., this assertion is fallacy in Gellhorn et explained (7th 1979) Administrative Law—Cases Comments ed. page 767: “If the fact finder has credited allegedly unsubstantial while evidence evidence, disregarding utterly irrefutable issue before a reviewing court biased, should not be whether the fact finder was but whether his of fact findings are on supported by substantial evidence the whole rec (See also, (7th ord.” A. O. Smith N. L. 1965) R. B. Cir. Corporation 103, 110.) 343 F.2d If the challenged findings are not supported by evidence, substantial it is the of the court to duty reviewing overturn those and will do so findings because of failure of not because proof, the results per se establish bias.
There is no explore reason to the heart and mind the ALO when effective relief is available if the court readily concludes a reviewing finding unsupported by substantial evidence. To hold otherwise would a losing raise encourage party specter of bias indiscriminately, he whenever could demonstrate that one finding of fact ad- large ministrative record was not We sufficiently supported. decline cast that cloud of uncertainty over adjudicative proceedings.
But, assert, petitioners that bias be established where the may record shows the officer hearing believed evidence introduced uniformly the union by and uniformly produced disbelieved evidence the em This ployer. contention is to the contrary authority. For great weight example, McEwen v. Occidental Ins. Co. Cal. *14 Life 86], P. it held was that numerous and continuous a rulings against [155 Conduct, judge, being of 6We note that under canon 5F of the Code Judicial under regulate duty extrajudicial to his so as risk activities to minimize the of conflict with duties, However, judicial practice B(l) his to law. compliance is not allowed section of tempore specifically exempts judges pro the code from canon 5F. 796 erroneous, even when form no of bias or ground charge
litigant, This rule tenable in both a and an administrative prejudice. judicial To fulfill his ALO must make choices when conflict duty, context. offered; thus, his reliance on certain witnesses and evidence is ing of no matter how consistent others cannot be evidence bias of rejection the of the produced by the ALO doubts one ly testimony or rejects declared, an op As Court “total of rejection adversaries. the Supreme a trier the or of posed integrity competence view cannot itself impugn (Labor S. 337 U.S. 659 Pittsburg of fact.” S. Co. Board U., 1602, 1606, S.Ct. see also International 1283]; L.Ed.2d 69 [93 Auto., (D.C.Cir. 1971) 455 L. R. B. F.2d United A. & I. Wkrs. v. N. A. 1357, 1368.)7 the did not err in refusing disqualify
It ALO follows however, is confined its decision to this Appeal, himself. Court of sue; the petition. Accordingly, it not of the did review substance a determination of re is retransferred to that court for proceeding (See v. Union Taylor for writ. maining petition issues presented 549 Cal.Rptr. R. Pac. R. 16 Cal.3d Corp. P.2d 855].) * J., Files, J.,
Tobriner, C. concurred. Acting pro- the retransfer with I agree Concurring. NEWMAN, J., did err that “the ALO conclusion Mosk’s with Justice ceeding separately write above.) I {Ante, himself.” refusing where future cases resolve help I might think an analysis propose is sought. adjudicator a nonjudicial recusal of courts and disqualification no rule means is By every regarding administrative and their agencies adjudicators. a suitable rule for judges (1st (Cf. Davis, 1958) ed. p. [“Leg- Law Treatise Administrative in order to escape supposed agencies islative bodies have often created program obtain administration of a of the or order to judiciary biases bias.”]; view or see also dis. with a desired point in accordance pejorative terms language and intemperate use of also contend that the 7Petitioners deciding this contention merits of part of an ALO. Without may show bias on the no abstract, the ALO used intem the record that face of find clear on the in the we herein. perate language pejorative terms * Council. Assigned by Acting the Judicial Chairperson *15 532, Cal.Rptr. 568-569 (1980) 27 Cal.3d v. Cory in Olson opn. Strauss, Decisional 217, 991]; Disqualifications 609 P.2d Officials of (“[These] pages 1010-1027 (1980) 80 Colum.L.Rev. Rulemaking proceed- in strictly judicial of disqualification with a discussion begin resembling proceedings the practice agency and then discuss ings this analysis of application the possible to consider moving trials before Judicial Conduct the Code of The statutes vary; to policymaking.”). from many agency differ significantly of Judicial Ethics and Canons and ad- sometimes diverge; process requirements the due regulations; counterparts. the judicial deviate from law often precedents ministrative 564-565, compare at (With e.g., 27 Cal.3d pp. v. Cory, supra, Olson 326-330 and Davis, pp. the Seventies Administrative Law of 42-50.) (2d 1980) Davis, ed. pp. Administrative Law Treatise The Statute ad of an legality that involve disputes initial in most inquiry be, prescribed? has the Legislature
ministrative order should What Code, which re the Labor 1145 of Here the statute is section pertinent in an and objective their duties “perform that ALRB quires employees ”1 party.... toward any manner without impartial prejudice shows, believe, Justice Mosk’s opinion I that no evidence supports that Mr. did in an finding Menocal not his duties perform objective he was impartial manner. The alternate that in fact not without charge, “bias” and prejudice, answered the Mosk discussion of opinion’s (ante, 789, 791, 792, 795). of bias” “appearance pp. agency that is chal postdated the action quote words in section 1145 that I 1The however, shown lenged already implicit, they merely That codified law here. Agricultural La Digest May 1978: “The Legislative excerpt from the Counsel’s employees all specifically provide that bor Relations Act of 1975...does not objective and im duties in an Agricultural perform Board shall their Labor Relations subject jurisdiction who is partial prejudice any party toward manner without specifically provide.” so such act to the board. This bill would amend [H] which, 2However, as is noted precedents law I would have cited the administrative below, many, judicial precedents. are rather than there 3C(l)(a) of the Canon Regarding should not overlook appearance of bias we Conduct, pro- himself in a judge Code of which reads: “A should Judicial including but ceeding might reasonably questioned, impartiality in which his ... concerning party, prejudice personal bias or limited to instances where ... he has concerning proceeding----” personal knowledge disputed evidentiary facts 170, subdivision contains “CCP Section Commentary The California thereto states: emphasizes the Code comparable statutory disqualification. Because California thet dis- may require more appearance 3C(l)(a) propriety, as well as the Canon fact of *16 798
The Regulation The second main in cases like this concerns inquiry regula agency 20230.4, tions. parties here have discussed regulation which 3 well-written, the ALRA It was but governed proceeding. not apparent (29 felt that it ly board on the NLRB rule modeling pertinent 102.37) C.F.R. was Respondent’s justifiable. arguments me persuade § (1) that the... ALRB regulation regarding disqualification of “[s]ince ALO’s was identical substance the NLRB it is NLRB regulation, case law which provides the for applicable precedent interpretation”; (2) and case law NLRB Mr. Menocal’s supports overwhelmingly ruling (See 4, 1980, here. 28-34; the board’s filed on Mar. petition here pp. 8-11.) also the UFW filed the same petition pp. day, Law4 Due Process and Administrative Commor\ cited such as Marshall v. Are rules inconsistent? Cases due process Jerrico, 188, 238, 182, 100 (1980) 446 242 L.Ed.2d S.Ct. U.S. Inc. [64 83, 493, 1610, (1912) 407 501 L.Ed.2d Peters v. U.S. 1613], [33 Kiff 260, (1979) 93, 25 Cal.3d 268 and v. Ramirez 2163], S.Ct. People 316, disinterest- “impartial mention 622], P.2d Cal.Rptr. those are decision-making.” Obviously ed tribunal” and “unprejudiced (Italics added.) qualification requires." than the statute ascertain, adjudicators suggests are Yet so I can no one that administrative far as Newman, (Cf. governed Two Decades Administra- by the Code of Judicial Conduct. 190, “The much-touted Critique tive Law A 44 Cal.L.Rev. 195: in California: has been a ‘Code of Ethics for Administrative Officials in California’ flop, omitted] [fn. feasible.”) In scarcely regarding but it follows reform ethics that law case, therefore, question whether Canon the commentators’ we need not address 3C(l)(a) requires.” “require disqualification more the statute does than disqualifi withdrawing personal bias or ground “on 3E.g., ALO’s speaks of the phrase cation”; that last Does “grounds disqualification.” also mentions and it grounds bias”? “personal than include other (“If.. affidavit also, facie case .such objector prima Arguably must state must write face”). recuse himself he ALO Yet if the refuses sufficient on its .. .is alleged facts. may dispute he grounds ruling.” imply seems that “the for his That out regulation which re- with Mosk’s conclusion that agree I do not Justice rule, disqualification is standard for “the substantive revision of its flects board’s 1.) agree 20263’s sub- I do (Ante, p.788, fn. essentially same 20230.4].” [as Procedure from Code of Civil directly “taken appears to have been stantive standard Act sets Procedure Administrative (Ibid.) 5.” The California section subdivision Code, (c).) (See Gov. subd. differing requirements. parallel § but Davis, Opinion Law Vermont 4See Administrative Common and the Yankee by “Administrative common law is either common law created courts Utah L.Rev. 3: through process, by agencies created about adjudication.” administrative or common law have, evolved via though, practice theory rights. They fundamental means buttress contentions here.5 petitioners’ no ways *17 law I am developments? persuaded What about administrative by my Davis, (1) (1976) Administrative Law of the Seventies reading pages 326-330, (2d (2) Davis, 1980), Administrative Law Treatise ed. pages 42-50,6 (3) (Cont.Ed.Bar California Administrative Practice Agency 1970) 143-144 and 147-148 and its 1979 34- pages supplement, pages 36, (1965) State Administrative Law 338-348 Cooper, pages that Mr. Menocal did not err in himself in the refusing ALRA proceeding.
Other “Prejudice?” The final of the Court paragraph 20-page opinion in this Appeal case reads: the ALO could not “Although perceive justification petitioners’ position, it seems clear to us that an patently em- attorney, Advocates, 1976, Public ployed by Inc. in 1975 or would be perceived as biased against unskilled low employers generally disputes against workers, paid Spanish-surnamed of interests and asserting community that he would to be particularly appear biased agricultural in a with the UFW.” employer dispute
I believe that the reference therein to workers” “Spanish-surnamed (“In Also, was not appropriate. the court’s footnote all accompanying record, fairness must be noted that far as from the appears so also, all of petitioners’ personnel, but their employees, supervisory not, ”) think, were I rinse out the Spanish-surnamed. did sufficiently (Cf. filed insidious intimations. the amici brief on June possibly 1980, on behalf of the San Francisco Committee for Urban Lawyers’ Affairs, the NAACP and Mexican American Defense and Edu- Legal Justice, Newman, 5Cf. and the New International Covenants Natural Due Process Rights: on Human L. footnote 45. Prospectus Pub. Davis, (2d 1980) 6Cf. 3 in 3 Volume Administrative Law Treatise ed. Preface for page superior legal xviii: “The law is profession to the common belief within the
one who has a preconceived policy disquali conviction about law or is for that reason 19:2, preconceived As shown in position fied. ... about and the law is clear and firm that a § law, policy, legislative disqualification.... facts is not a Belief in ‘neutral [H] objective’ judges prevalent, showing uphill but 19:3 undertakes the task § that belief appraising applying pre should be confined to such tasks as evidence and viously-existing applied policy. Taking law and cannot be of new law or new creation position intrinsically on a controversial issue unneutral.” funds,
cational CRLA Farmworker Advisory Salinas Migrant Committee, Advocates, Amsterdam, Falk, Public Anthony Jerome Mendez, Near, Ephraim Meyers, Gary Charles Margolin, Miguel Wallach, 24-29.) E. Robert in these pp. views are outlined My briefly 21, 1980, final on by letter this court filed March paragraphs Assistance, California Rural Channel Counties Services Legal Legal Association, and Education and the Mexican American Defense Legal Fund: decision below troubling is a the Andrews very aspect
“[T]here sensitive, which requires careful and decisive review court. *18 cli Most of the cited the as involve ‘politically cases court sensitive’ ents or with these cases in names. some of groups hispanic Significantly, no the involve related issues. For case way employment example, & Tele Spanish-Speaking Telephone Subscribers Telephone Pacific telephone involved an obtain graph attempt bilingual emergency service; in de Raza v. Brown and the case of la Unida Confederacion which undercounted methodology volved a to the 1970 census challenge the Andrews of these cases to hispanic population. relationship context, it a common some of the In ethnicity among parties. in Andrews also carries the administrative law officer noteworthy it seemed clear that hispanic surname. The court below said in generally be as biased perceived employers Menocal ‘would (Opin workers’ paid unskilled low disputes against Spanish-surnamed ion, (italics its what added). opinion It is difficult to know from pg. McGuire or had had name been court would have done Menocal’s exclusively he non-hispanic groups been involved representing minority (the as well firm and women record reflects that his represents Black[s] as hispanics). of law is no hint
“It is to ensure that there upon incumbent this Court in serve as decision-maker this state that an individual cannot share a who one side or the other case a class of on litigants involving with or the decision-maker cultural or racial sexual identity his/her per- that a Black in California law clients. never been a hint There has sit as a cannot people son Black represented or one who has deci- unrelated to Black litigants decision-maker in a case involving hint never been any has sion-maker cases. There or his/her in a case decision-maker sit as a law that a woman cannot California she or because is a woman simply women’s because rights she involving should there Nor represented past. women women’s issues these opens below decision Nonetheless, Andrews such hint. any decisively sensitively to act this Court upon It is incumbent doors. doors.” reclose those A. Dai- L. (Cf. Judiciary, and Soul the Heart Changing Days, 3; of still for a memento (Oct. 2, 1980) col. p. at Journal ly 191 Cal. see Sato v. Hall hearts and souls unchanged is a member (“The . . shows that the petitioner . judgment P. 520] ”). . . . See race, void and this renders showing judgment of a yellow Holmes, Cardozo, Jeffer- Noonan, and Masks of the Law: too Persons son, “[Wythe’s] the Masks 60: p. as Makers of and Wythe the evil of slavery. wanted to end followed in his Jefferson path. pupils Monroe, and John Marshall. Deploring did James Henry Clay, So evil, Speaker, their as objections overcame they [nonetheless] ...”) President, . . . and sustained the system. and Chief Justice CLARK, J. I dissent.
The of bias—those circumstances a reasonable appearance leading fact—is not a suffi- only to doubt the of the trier of person impartiality on Disqualification cient but a compelling ground disqualification. to the the basis that a officer biased is essential appears quasi-judicial fundamental health and of the for two stability adjudicative process is hearing protected. reasons. 1. The due to a fair litigant’s process right is Public in the of our of integrity system justice 2. confidence sustained. States Court has the due Supreme pro United long recognized
cess
fair
in
right
a
trial
a tribunal free from even the
of
appearance
bias. That court stated in Peters v.
Freedom from the of bias appearance in, for, process. the adjudicative and belief public respect sential must not quasi-judicial hearings “The reason for the rule that trials and fair, of- fact, is that judicial must also to be appear be fair they the which is derived from except no real possess power ficers 802
respect and confidence of the Judicial people. will not en power long dure if public respect and confidence destroyed judicial because power is exercised in an unfair manner or to be appears exercised in an (Wood manner.” v. City Civil Service Commission unfair Cal.App.3d Cal.Rptr. 175]; added.) italics [119 the impossible—a showing near of actual bias—before a By requiring himself, official must fail to quasi-judicial majority pro- tect due public and confidence concerns. The “actual bias” process standard protects the most instances only against egregious flagrant of bias. rare will such be cases blatant bias Only truly displays disclosed. of “concrete" openly showing they To illustrate type require, would discuss cases which officer majority judicial disclosed terms that had issue in no uncertain he before prejudged received, in its testimony pretrial was or that he had a case prejudged cases, however, a will openly express pre- In most stages.1 judge Bias, in favor or result. unlike other disposition particular litigant of due which be determined on the re- deprivations process may clearly cord, is invisible influence and for that reason must be generally an particularly guarded against. will left the ALRB before party appearing today’s ruling,
Under an ALO with an process of due deprivation against without recourse such party. unprovable predisposition but apparently powerful bias Johnson actual difficulty proving recognized This court “It 5], impor- P.2d (1958) 50 Cal.2d Court Superior course, judiciary tant, that the fairness integrity not only *20 courts be conducted maintained, that business of the but also the be- Prejudice, of unfairness.... suspicion as will avoid such a manner and, when a asserts mind, judge difficult to very prove, state is of ing he to determine that unbiased, reluctant is are naturally that he courts is not only court stated: expression, In a later is prejudiced.” “‘[I]t that judge. should prejudice the appearance but fact is ... This reason of Constitution. that to the appeals is a rule [I]t of the judi- impair legitimacy would that prejudice not the fact of (1903) Cal. 247 P. majority—Pratt v. Pratt 141 by [74 discussed 1In the cases Superior Church v. Court United Methodist etc. and 742] Pacific Conference 72, compellingly of the speaks court Cal.Rptr. (1978) Cal.App.3d 88 82 44]—the [147 distinguish by these attempt cases majority to fairness. The appearance for the need majority bias existed. The concluding that actual focusing particular on facts their restricting to their by them facts holdings in these cases emasculate the critical thus egregious. as to facts
803
i.e.,
but
role
rather
fact of
ciary’s
probable
prejudice,
few,
appearance The truth of
if
ultimate
prejudice.
any,
“facts” of
human existence are established to the
certitude
point
complete
which eliminates all
A
possible doubt.
fact as difficult of ascertainment
seldom,
ever,
as
person’s
is
if
any
“prejudice”
proven so
completely
reasonable persons
not still
might
(Solberg v.
disagree.’”
Superior
(1977)
182,
182,
Court
19 Cal.3d
19 Cal.3d
193
Cal.Rptr.
[137
The majority express concern that an of bias” standard “appearance will be “vague, and laden with mischief.” How- unmanageable potential ever, as contemplated the court in Evans v. Court Superior 107 Cal.App. 662], P. the test for of bias is appearance [290 whether the facts stated to a certain honestly “‘point condition would life, influence men in the business absolutely transactions of when to the applied particular case would lead a reasonable to person could, hesitate as circumstances, to whether or not the under the judge nature, considering weaknesses of human such facts. entirely ignore (Dakan ...’” Court Superior Cal.App.
P. 1129].) Such “reasonable man” test would be It be- easy apply. comes unmanageable to those who find choose to consciously reason not to it. apply use
Admittedly, of an “appearance of bias” standard result may disqualifications both in cases of actual bias and in cases where there no bias. But when an individual’s fundamental to a fair right hearing stake, at is it not better err on the side of rather than im- justice pose the risk that in an instance of actual but bias the unprovable prejudiced will be party without remedy?
An appearance of bias should be particularly guarded against ALRB First, hearings. regulations pertinent to those make hearings them especially vulnerable to of bias. An ALO is charges authorized by regulation to decide the question of his own when disqualification prop- erly {Ante, challenged. 1.) contrast, p. fn. In in judicial *21 proceedings is judge mandatorily disqualified upon chal- peremptory (Code lenge Proc., 170.6) and, Civ. even after the peremptory § exercised, has challenge been to continuing disqualification challenges successor judges—if a prima facie case is stated—are determined by other (Code disinterested Proc., judges 5). Civ. subd. In Nation- § al Labor (NLRB) Relations Board the federal to hearings counterpart ALO, law is free from judge, relatively
the the administrative 551-706) (see is and forbidden NLRB control U.S.C.A. generally, §§ law, thus practice avoiding in the independent from an engaging (29 interest instant case. C.F.R. plaguing kind of conflict of 100.735-13(a)(1) (1980).) § vulner- regulations making hearings
It moreover ALRB appears that to the declared contrary purpose able are directly to bias charges (ALRA). “to in- Act That is purpose Labor Relations Agricultural and a sense certainty fields” and “to bring sure in the peace agriculture volatile condition in unstable and presently potentially of fair to a play Sess, 1.) (Stats. 1975, 4013 ch. If this re- p. Third Ex. state.” § continuing five in- years sult be achieved—even after ultimately to alike fields—farm workers and growers and distrust in the stability confident in the knowledge to before the ALRB must be able appear will be and resolved. fairly that that board objectively cause before any appear- vigilance against for particular In circumstances calling declared bias, blatantly ignored in case the ALO the instant ance of then He was to himself. of the ALRA refusing purpose firm, Advocates, Inc. He law Public active member of a interest public and to his firm allegiances to loyalties had current and continuing source of the ALO’s clients whom the present upon major its and future furthering firm was dedicated While law depended. livelihood discrimina- and racial and ethnic of the victims of poverty interests as cer- equally dedication—it a most commendable tions—certainly those furthering should not lend itself tain that the judicial system acceptable. of conduct not otherwise standards purposes by condoning perception a public in 1975 and hearings At the time of these economic, subjected workers were frequently existed agricultural them employed who growers discriminations and social ethnic in the in this case were growers took their advantage plight. dedicated to law firm was whom the ALO’s persons class of of real party farm worker members the interests of pursue advancing Workers, rights a civil and labor interest, Farm the United organization. the ALO as advocate other
Illustrative of the interests shared case, impermissible fact in the instant suggesting cases and as trier of workers in 250 Farm Workers v. bias, firm farm represented his law (No. (N.D.Cal., 70-481 filed Mar. Labor Brennan Secretary of *22 ac- in a class charged workers California farm 1970)), case in which a Development Human Resources Department the California tion a with operating (now Development Department) the Employment the state. service across farm labor and dominated oriented grower case were presumably in the instant are parties Farm workers who in 250 Farm Workers.2 of the class members bias, does not actual such is unneces- prove proof
While record when, here, as it is with the of bias. That replete appearance sary find- is made all the clearer the ALO’s failure to file his appearance by received, until 14 months after all evidence had been ALRB ings in- regulations period. decision Such requiring 10-day making delay creased the likelihood the ALO’s would have been colored findings events, and related his judgments the inter- feelings practice during The vening months. ALO ruled on all against petitioner growers major issues. is irrel ALO’s law practice of the that the nature
The majority agree mental attitude towards bias, bias refers to a because evant to prove matter. subject viewpoints regarding or social and not to political party the same represents firm However, consistently ALO’s law when an the ALO is pro concluded clients, be reasonably it may limited class and social issues on legal viewpoint to a particular grammed and, cor represents class he particular of the but also to a bias favor cast those classes generally against to a predisposition respondingly, is a member which a party a class of role. Bias an opposing Richardson disqualification. (Adoption sufficient grounds 323].) Cal.Rptr. Cal.App.2d ALRB itself may engage that because the majority argue record, exists an there its review of upon independent factfinding However, has been biased. when it an ALO appears adequate remedy in conducting resources and other money after substantial investment decision, reluctant the ALRB is naturally producing a hearing rec- error on the reason other than clear such decision for any overturn and other influ- Moreover, nonetheless unfair findings subtle but ord. recognized, cannot be effectively to a biased ALO ences attributable instant record. In the on an administrative challenged established or Legal support of the ALRB Rural Assistance the amicus to California 2Note Advocates, Inc., the ALO’s law joined by Public in this case is Farm Workers United firm.
case ALRB all of the ALO’s and rec- adopted essentially findings ommendations, not even the issue of the ALO’s bias. In addressing (7th 1940) Inland Steel Co. v. National Labor Relations Board Cir. 9, 21), 109 F.2d to comprehend court stated: “But we are unable how the Board which it had could restore to the petitioner right is, been deprived impartial the Trial Examiner—that a fair fact, Board, decision, In in its made no mention of the hearing. ” of bias directed its Examiner ... . charge bias— The law appearance record establishes as a matter of refused to law—when the ALO due denying petitioners process writ be granted aside from this case five should step years ago. the decision set aside.
Richardson, J., concurred. 16, 1981. March was denied rehearing
Petitioners’ application Files, J.,* therein. Bird, J., participated therein. C. did not participate J., should Richardson, application opinion was of granted.
* Council. the Judicial Acting Chairperson of Assigned by the