THEODORE L. HAAS, Plaintiff and Respondent, v. COUNTY OF SAN BERNARDINO et al., Defendants and Appellants.
No. S076868
Supreme Court of California
May 6, 2002
1017
Alan K. Marks, County Counsel, and Alan L. Green, Deputy County Counsel, for Defendants and Appellants.
Richards, Watson & Gershon, Michael G. Colantuono, Roy A. Clarke, Gabriel K. Coy; Cohen & Goldfried and Robert M. Goldfried for 110 California Cities and the California State Association of Counties as Amici Curiae on behalf of Defendants and Appellants.
Roger Jon Diamond for Plaintiff and Respondent.
OPINION
WERDEGAR, J.—In this case, we consider a due process challenge to the manner in which some counties select temporary administrative hearing officers. The
procedure used here does create that risk. We thus affirm the Court of Appeal‘s decision upholding the superior court‘s writ of mandate disqualifying the hearing officer.
BACKGROUND
Plaintiff Theodore L. Haas operates a massage clinic in San Bernardino County (the County) under a license issued by the County. When a deputy sheriff reported that a massage technician had exposed her breasts and proposed a sexual act, the County Board of Supervisors (the Board) revoked Haas‘s license. Haas timely appealed the notice of revocation, and the Board set the matter for hearing. The notice identified a local attorney, Abby Hyman, as the hearing officer. In his answer to the notice, Haas objected that “the County may not hire its own hearing officer to conduct the hearing, said relationship having created . . . an actual conflict of interest and/or potential conflict of interest in violation of the Due Process Clauses of the Federal and State Constitutions.” Haas proposed, instead, that the County contract with the state Office of Administrative Hearings for the services of an administrative law judge (
Haas renewed his objection to the hearing officer when the hearing convened. Haas‘s attorney, Roger Jon Diamond, argued that Hyman had an impermissible financial interest in the case, arising from the manner in which the County had selected and paid her, and moved that she recuse herself. Hyman denied the motion, but nevertheless permitted Diamond to pursue the matter for purposes of making the record.
Diamond briefly inquired into the County‘s arrangements with Hyman. Hyman stated that she had not previously served as a hearing officer and had been hired to hear only the matter at hand. Deputy County Counsel Alan Green, representing the County, explained that he had hired Hyman to avoid using again the same temporary hearing officer who had already recommended that Haas‘s license be revoked.3 Green, who had not previously met Hyman, had selected her based on his coworkers’ recommendations and
During the course of this discussion, Green volunteered, “The intent is that we will use Ms. Hyman on assignment, as the occasion suggests, in the future if she‘s interested in doing it and if the case should arise.” Diamond pursued the matter with further questions to Green, who several times confirmed that he foresaw employing Hyman in the future on an ad hoc basis. When asked, “Is Ms. Hyman‘s contract with the County only for this case or for future cases?” Green answered, “It‘s open-ended as far as that‘s concerned.” When asked, “But the County does anticipate using the services of Ms. Hyman in future cases?” Green answered, “Sure.” Hyman had not replaced Horspool, Green explained; instead, he anticipated the County might use either attorney “as their schedules permit.” Shortly thereafter the discussion returned to the subject of future employment. Diamond asked Green, “And so certainly you‘ve advised [Hyman] that she might be needed on future hearings.” Green responded, “I probably have. I don‘t recall expressly doing so.” When Hyman interjected, “I don‘t recall that,” Diamond asked, “But that‘s certainly within possibility?” to which Green replied, “Certainly.” Diamond then asked, “And she knows that?” Green replied, “I would assume so.” (Hyman was, of course, present during this exchange.) To Diamond‘s further question, “And she‘s only paid for the work she actually performs; is that right?” Green responded, “In connection with this hearing, correct.”
After briefly discussing Hyman‘s credentials, Diamond asked Green why he did “not select a hearing officer from the Office of Administrative Hearings of the State of California pursuant to
During the hearing, which lasted one hour and 45 minutes, two witnesses were called: the deputy sheriff who reported the violation, and Haas. Haas did not materially challenge the deputy‘s account of the incident. He did, however, through his attorney, attempt to show that no similar incident had previously occurred at his establishment. He also argued that revocation—the sole penalty authorized in the San Bernardino County Code for such violations—was disproportionately harsh. The hearing officer took the matter under submission and rendered a brief written decision 47 days later recommending revocation.
Haas pursued his administrative appeal, which took the form of a written request for a hearing before the Board. In that request, Haas reiterated his objection to the hearing officer. At the hearing, the Board approved the hearing officer‘s recommendation.
Haas petitioned for a writ of administrative mandamus. (
The Board appealed, and the Court of Appeal affirmed. The court rejected Haas‘s argument “that the possibility of the County retaining Hyman as a hearing officer in the future,” standing alone, “created a significant pecuniary interest.” The court believed that such an interest was too “remote, contingent and slight” to require Hyman‘s recusal. Nevertheless, the court found a violation of due process in the “totality of the particular circumstances in this case,” namely, that “the hearing officer was unilaterally selected, retained and paid by the party threatening deprivation of an adversary‘s constitutionally protected property rights; the attorney who retained the hearing officer participated in the hearing; and there was a complete absence of any restrictions on the selection of the hearing officer to ensure a reasonable degree of impartiality.” Like the superior court, the Court of Appeal declined “to instruct the County as to what procedures and restrictions should be implemented,” although it “emphasize[d] [that] such procedures should attempt to insure reasonable impartiality.” We granted review.
DISCUSSION
The question presented is whether a temporary administrative hearing officer has a pecuniary interest requiring disqualification when the government unilaterally selects and pays the officer on an ad hoc basis and the officer‘s income from future adjudicative work depends entirely on the government‘s goodwill. We conclude the answer is yes. To summarize the governing principles, due process requires fair adjudicators in courts and administrative tribunals alike.7 While the rules governing the disqualification of administrative hearing officers are in some respects more flexible than those governing judges,8 the rules are not more flexible on the subject of financial interest. Applying those rules, courts have consistently recognized that a judge has a disqualifying financial interest when plaintiffs and prosecutors are free to choose their judge and the judge‘s income from judging
When due process requires a hearing, the adjudicator must be impartial. Speaking of trials before judges, the United States Supreme Court has declared that “[a] fair trial in a fair tribunal is a basic requirement of due process.” (In re Murchison, supra, 349 U.S. 133, 136 [75 S.Ct. 623, 625].) Speaking of administrative hearings, and articulating the procedural requirements “demanded by rudimentary due process” in that setting, the court has said that, “of course, an impartial decision maker is essential.” (Goldberg v. Kelly, supra, 397 U.S. 254, 267, 271 [90 S.Ct. 1011, 1020, 1022].)
Of all the types of bias that can affect adjudication, pecuniary interest has long received the most unequivocal condemnation and the least forgiving scrutiny. As the high court explained in Tumey v. Ohio (1927) 273 U.S. 510, 523 [47 S.Ct. 437, 441, 71 L.Ed. 749] (Tumey), “[a]ll questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion. [Citation.] But it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Thus, while adjudicators challenged for reasons other than financial interest have in effect been afforded a presumption of impartiality (Withrow v. Larkin, supra, 421 U.S. 35, 47 [95 S.Ct. 1456, 1464-1465]; see Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, 820 [106 S.Ct. 1580, 1584-1585, 89 L.Ed.2d 823] (Aetna)), adjudicators challenged for financial interest have not. Indeed, the law is emphatically to the contrary. The high court has “ma[de] clear that [a reviewing court is] not required to decide whether in fact [an adjudicator challenged for financial interest] was influenced, but only whether sitting on the case . . . ‘would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.‘” (Aetna, supra, 475 U.S. at p. 825 [106 S.Ct. at p. 1587], quoting Ward v. Village of Monroeville (1972) 409 U.S. 57, 60 [93 S.Ct. 80, 83, 34 L.Ed.2d 267] (Ward), and Tumey, supra, 273 U.S. at p. 532 [47 S.Ct. at p. 444].) “[T]he requirement of due process of law in judicial procedure is
In Withrow v. Larkin, supra, 421 U.S. 35, 47 [95 S.Ct. 1456, 1464], the high court wrote that a claim of bias based on the combination of investigative and adjudicative functions in a state medical board had to “overcome a presumption of honesty and integrity in those serving as adjudicators. . . .” But never, in the years since Withrow, has the high court so much as hinted that a litigant seeking to disqualify an adjudicator for financial interest must overcome any such presumption. To the contrary, the high court has repeatedly and unambiguously held that courts do not, when faced with a claim of bias arising from financial interest, decide whether the adjudicator was in fact influenced. The standard continues instead to be that set out in Tumey, supra, 273 U.S. 510, 532 [47 S.Ct. 437, 444], namely, whether the adjudicator‘s financial interest would offer a possible temptation to the average person as judge not to hold the balance nice, clear and true. (Aetna, supra, 475 U.S. at pp. 824-825 [106 S.Ct. at pp. 1586-1587]; Connally v. Georgia (1977) 429 U.S. 245, 249 [97 S.Ct. 546, 548, 50 L.Ed.2d 444].) Indeed, applying this standard in Liljeberg v. Health Services Acquisition Corp. (1988) 486 U.S. 847, 865, footnote 12 [108 S.Ct. 2194, 2205, 100 L.Ed.2d 855], the court went so far as to vacate a decision entered by a judge who was not conscious of the circumstances giving a university, on whose board of trustees he served, a financial interest in the case.12
The rule declared in these civil and criminal cases also applies to administrative proceedings. In this context, the high court has written: “It is
The paradigmatic examples of adjudicators with pecuniary interests in the outcome are (1) adjudicators serving, in effect, as judges of their own cases, and (2) judges whose compensation depends on the result of adjudication. An example of the first type—judging one‘s own case—is Aetna, supra, 475 U.S. 813, 821-825 [106 S.Ct. 1580, 1585-1587], in which the high court vacated a state supreme court decision recognizing the tort of bad faith refusal to pay insurance claims because a member of the court was a plaintiff in actions pending against insurance companies based on that tort theory.13 Examples of the second type—compensation dependent on the outcome—are Tumey, supra, 273 U.S. 510, which condemned a Prohibition Era statute that allowed mayors trying cases to be paid from the fines they assessed, and Connally v. Georgia, supra, 429 U.S. 245, which struck down a law paying
Another example of outcome-dependent compensation factually closer to the case before us was identified and condemned in the so-called fee system cases.15 The now obsolete fee system gave magistrates a pecuniary incentive to favor frequent litigants by allowing plaintiffs and prosecutors to pick their magistrate and by compensating magistrates according to the number of cases they decided. The leading case is Brown v. Vance, supra, 637 F.2d 272 (Brown). In that decision by Judge Wisdom, the Fifth Circuit Court of Appeals held unconstitutional Mississippi‘s system for compensating justices of the peace. The highest courts of West Virginia and South Carolina had already reached the same conclusion (see State ex rel. Shrewsbury v. Poteet, supra, 202 S.E.2d 628, 631-632; State ex rel. McLeod v. Crowe, supra, 249 S.E.2d 772, 776-777, 778), and the federal district court would soon thereafter do likewise for the State of Georgia (Doss v. Long, supra, 629 F.Supp. 127, 129).
At the time of Brown, supra, 637 F.2d 272, Mississippi divided its counties into five districts, each with at least one justice of the peace. Justices of the peace had jurisdiction over misdemeanors occurring in their districts and civil cases involving less than $500 in damages arising anywhere in the county. A prosecutor, typically a highway patrol officer prosecuting a traffic offense, was free to file a complaint before any justice of the peace in the district or any justice in the county if no district justice was available. A civil plaintiff was free to file suit before any justice in the county. Justices were paid $10 for each criminal case, regardless of disposition, and $15 for each civil case, payable by the losing party. (Id. at p. 275.) The plaintiffs in Brown challenged this fee system as “produc[ing] a temptation to the average man as a judge to favor conviction in criminal cases and judgment for the plaintiffs in civil cases” (id. at p. 274) and, thus, as violating due process. More specifically, the Brown plaintiffs alleged that, because of the system, “police officers favor[ed] ‘convicting judges‘; collection agencies and other creditors favor[ed] judges who tend[ed] to decide in their favor.” (Ibid.)
The lower court in Brown, supra, 637 F.2d 272, relying on Withrow v. Larkin, supra, 421 U.S. 35, had “concluded that the plaintiffs . . . failed to ‘overcome a presumption of honesty and integrity as to those serving as
The compensation system at issue in the case before us is functionally similar to the system condemned in Brown, supra, 637 F.2d 272, and the other fee system cases (Doss v. Long, supra, 629 F.Supp. 127; State ex rel. McLeod v. Crowe, supra, 249 S.E.2d 772; State ex rel. Shrewsbury v. Poteet, supra, 202 S.E.2d 628). Here, as there, the prosecuting authority may select its adjudicator at will, the only formal restriction here being that the person selected must have been licensed to practice law for at least five years. (
The teaching of the fee system cases and the high court decisions on which they, in turn, rely is that, to violate due process, the risk of bias caused by financial interest need not manifest itself in overtly prejudiced, automatic rulings in favor of the party who selects and pays the adjudicator. The “possible temptation” (Tumey, supra, 273 U.S. 510, 532 [47 S.Ct. 437, 444]) not to be scrupulously fair, alone and in itself, offends the Constitution. That such a temptation can arise from the hope of future employment as an adjudicator is easy to understand and impossible in good faith to deny. One commentator described the subtle bias that can result from an unregulated free market in adjudicative services simply as the adjudicator‘s recognition that “[s]teady customers represent an important asset to any seller” and the resulting tendency on the adjudicator‘s part to “give steady customers the benefit of the doubt more often than not.” (Note, The California Rent-a-Judge Experiment: Constitutional and Policy Considerations of Pay-As-You-Go Courts (1981) 94 Harv. L.Rev. 1592, 1608.)17 This was precisely the risk of bias to which Haas‘s attorney alluded in his motion to disqualify the hearing officer in this case. The hearing officer‘s suggestion that Haas split her fee with the County did not obviate that risk because, as Haas‘s attorney explained, Haas would “not be paying for [the hearing officer‘s] services in future cases where the County retains [her] services.” In other words, the County rather than Haas would be the repeat customer upon whose goodwill, alone, the hearing officer‘s prospect for future employment in that capacity depended.18 This is the same risk of bias that was condemned in the fee system cases. Because the same constitutional principles governing
Against this conclusion, the County has very little to say that was not anticipated and rejected in the cases already discussed. The County has devoted much of its argument to the contention that due process does not preclude the government from either paying or selecting hearing examiners. But to consider payment and selection as separate issues is to miss the point. Certainly due process does not forbid the government to pay an adjudicator when it must provide someone with a hearing before taking away a protected liberty or property interest. Indeed, the government must ordinarily pay the adjudicator in such cases to avoid burdening the affected person‘s right to a hearing. (California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 337-357 [84 Cal.Rptr.2d 425, 975 P.2d 622].) Furthermore, no generally applicable principle of constitutional law permits the affected person in such a case to select the adjudicator. Haas does not argue to the contrary. Neither payment nor selection, considered in isolation, is the problem.
The County also argues that any financial interest Hyman may have had in the prospect of future employment as a hearing officer was too slight to require disqualification. To be sure, the high court has required disqualification only for financial interests that it has characterized as “‘direct, personal, substantial, [and] pecuniary‘” rather than “slight.” (Aetna, supra, 475 U.S. 813, 825-826 [106 S.Ct. 1580, 1587-1588], quoting Ward, supra, 409 U.S. 57, 60 [93 S.Ct. 80, 83], and Tumey, supra, 273 U.S. 510, 523 [47 S.Ct. 437, 441].) But the precise teaching of the fee system cases is that a direct, personal, and substantial pecuniary interest does indeed exist when income from judging depends upon the volume of cases an adjudicator hears and when frequent litigants are free to choose among adjudicators,
Indeed, the types of financial interests that courts have found not to create an unconstitutional risk of bias have been far more indirect, impersonal, and insubstantial than cash paid in hand to the adjudicator with the prospect of more. The high court in Aetna, supra, 475 U.S. 813, 825-826 [106 S.Ct. 1580, 1587-1588], for example, found to be “slight” the hypothetical interest of six members of the Alabama Supreme Court as unnamed plaintiffs in an as-yet-uncertified class action on behalf of state employees covered by a health insurer that allegedly withheld payment on valid claims. The justices were, thus, not disqualified from participating in a different case presenting the question whether Alabama would recognize a cause of action for bad faith refusal to pay claims. “With the proliferation of class actions involving broadly defined classes,” the high court concluded, “the application of the constitutional requirement of disqualification must be carefully limited. Otherwise constitutional disqualification arguments could quickly become a standard feature of class-action litigation.” (Id. at p. 826 [106 S.Ct. at p. 1588].) In California, the Court of Appeal in Gai v. City of Selma (1998) 68 Cal.App.4th 213, 228 [79 Cal.Rptr.2d 910], dismissed as “remote, indirect and uncertain,” in the context of a disciplinary appeal, the alleged financial interest of a public member of a city personnel commission arising from the member‘s sale of gasoline to the city. While the member‘s financial interest would presumably have disqualified him from participating in decisions involving the purchase of fuel, that interest had no clear effect on his ability to judge a disciplinary matter. The speculative claims of financial interest rejected in these cases cannot fairly be compared with the direct, personal, and substantial financial interest of an adjudicator whose future work in that capacity depends entirely on the goodwill of the party paying the adjudicator‘s fee.
The County also contends we have not required the disqualification of administrative hearing officers absent a showing of actual bias. Although the contention is accurate with respect to claims of bias arising from a hearing officer‘s personal or political views, it is erroneous as to claims of bias arising from financial interest. The County bases its argument on Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781 [171 Cal.Rptr. 590, 623 P.2d 151] (Andrews), a plurality opinion signed by only
In reaching this conclusion, the Andrews plurality did not purport to address the requirements of due process. There was no need to do so. Personal bias, such as that which can arise from social and political views, is not necessarily of constitutional significance and is, thus, subject to regulation by the state. (Aetna, supra, 475 U.S. 813, 820 [106 S.Ct. 1580, 1584-1585]; Tumey, supra, 273 U.S. 510, 523 [47 S.Ct. 437, 441].) Thus, the Andrews plurality appropriately determined by reference to state statutes and regulations, rather than the due process clause, whether a private attorney was disqualified from serving as a hearing officer because his public interest law firm had previously represented farm workers.
Indeed, the Andrews plurality alluded to the requirements of due process only once—to recognize that certain well-defined situations, including an adjudicator‘s financial stake in the outcome of a dispute, create exceptional situations “in which the probability or likelihood of the existence of actual bias is so great that disqualification of a judicial officer is required to preserve the integrity of the legal system, even without proof that the judicial officer is actually biased towards a party.” (Andrews, supra, 28 Cal.3d 781, 793, fn. 5, citing Peters v. Kiff (1972) 407 U.S. 493, 502 [92 S.Ct. 2163, 2168, 33 L.Ed.2d 83], and Tumey, supra, 273 U.S. 510.) In other words, the Andrews plurality “specifically recognized actual bias need not be shown when the alleged bias is due to a financial interest in the outcome of the dispute.” (University Ford Chrysler-Plymouth, Inc. v. New Motor Vehicle Bd., supra, 179 Cal.App.3d 796, 803-804.) This, of course, is precisely the rule mandated by due process in both judicial and administrative proceedings, and the rule by which the high court has repeatedly “[made] clear that [a reviewing court is] not required to decide whether in fact [an adjudicator] was influenced, but only whether sitting on the case . . . ‘would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.‘” (Aetna, supra, 475 U.S. 813, 825 [106 S.Ct. 1580, 1587], quoting Ward, supra, 409 U.S. 57, 60 [93 S.Ct. 80, 83], and Tumey, supra, 273 U.S. at p. 532 [47 S.Ct. at p. 444]; see also Withrow v. Larkin, supra, 421 U.S. 35, 46-47 [95 S.Ct. 1456, 1463-1465].)
The County also contends that any possibility of bias on the part of a hearing officer is cured when the Board independently reviews the administrative record and decides whether to accept or reject the officer‘s recommendation. The short answer to the contention is that no court has relied on this argument to uphold a decision reached by an adjudicator found to have suffered from a constitutionally significant risk of bias. Indeed, several courts have expressly rejected the argument. The leading case on point is Ward, supra, 409 U.S. 57, in which the high court rejected the claim that the unfairness of being subjected to trial by a mayor with a financial interest in assessing fines “can be corrected on appeal and trial de novo. . . . We disagree,” the high court wrote. “This ‘procedural safeguard’ does not guarantee a fair trial in the mayor‘s court; there is nothing to suggest that the incentive to convict would be diminished by the possibility of reversal on appeal. Nor, in any event, may the State‘s trial court procedure be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance.” (Id. at pp. 61-62 [93 S.Ct. at pp. 83-84], fn. omitted, italics added.) Courts have followed Ward‘s conclusion on this point both in fee system cases (Brown, supra, 637 F.2d 272, 279; State ex rel. Reece v. Gies (1973) 156 W.Va. 729 [198 S.E.2d 211, 216]) and in cases involving administrative tribunals (Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435, 445-446 [187 Cal.Rptr. 811]).
The plurality in Andrews, supra, 28 Cal.3d 781, 794, did suggest that the opportunity for independent review weighed against adopting a hypothetical
Next, the County contends that any benefit to the adjudicative process that might come from restricting its freedom to choose hearing officers would not justify the increased burden on the County. The County thus invokes the cost-benefit analysis of Mathews v. Eldridge (1976) 424 U.S. 319, 335 [96 S.Ct. 893, 903, 47 L.Ed.2d 18] (Mathews), in which the high court wrote that the “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
The Mathews cost-benefit analysis appears to have no legitimate application in this context. As another court has explained, “[a] Mathews balancing test . . . is not the appropriate inquiry when the due process claim involves an allegation of biased decisionmakers. Mathews involved only allegations of insufficient procedural safeguards, not allegations of a biased decisionmaker. The Mathews court made no comment on the line of cases that indisputably establish the right to an impartial tribunal. [Citations.] Indeed, since Mathews, the Supreme Court has had several occasions to consider claims of due process violations based on allegations of a biased decisionmaker; in none of these cases has the Court resorted to the Mathews balancing test to resolve that issue.” (United Retail & Wholesale Emp. v. Yahn & Mc Donnell (3d Cir. 1986) 787 F.2d 128, 137-138, citing Schweiker v. McClure, supra, 456 U.S. 188; Marshall v. Jerrico, Inc. (1980) 446 U.S. 238 [100 S.Ct. 1610, 64 L.Ed.2d 182]; Friedman v. Rogers (1979) 440 U.S. 1 [99 S.Ct. 887, 59 L.Ed.2d 100].) Indeed, the high court in Schweiker v.
The justification for applying different analyses to the distinct problems of biased adjudicators and inadequate procedures is that “the requirement of an impartial decisionmaker transcends concern for diminishing the likelihood of error.” (United Retail & Wholesale Emp. v. Yahn & Mc Donnell, supra, 787 F.2d 128, 138.) “[I]f the only problem with biased decisionmakers was the likelihood of error, it would make sense to apply the Mathews balancing test in cases involving allegations of biased decisionmakers and to subsume the problem of bias under the ‘risk of erroneous deprivation’ prong of the three-part test.” (Ibid.) However, “[t]he unfairness that results from biased decisionmakers strikes so deeply at our sense of justice that it differs qualitatively from the injury that results from insufficient procedures. In Justice Holmes’ famous phrase, ‘even a dog distinguishes between being stumbled over and being kicked.‘” (Ibid., quoting from Holmes, The Common Law (1881) p. 3.)
Joining the County on this point, amici curiae assert that many local governments and school boards appoint temporary hearing officers under similar ad hoc procedures and will incur additional costs and inefficiencies if their own procedures are disapproved as a result of today‘s decision.20 We do not consider the constitutional validity of any rule or practice not presently before us. Moreover, speculation about the possible outcome of hypothetical cases cannot justify tolerating a practice that we have considered and found to create a constitutionally unacceptable risk of bias.
In any event, the problem we address here is limited in scope, and constitutional methods for selecting administrative hearing officers are readily available. The problem arises from the lack of specific statutory standards governing temporary hearing officers appointed by counties under
The type of hearing at issue here falls under
The decision of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Chin, J., Moreno, J., concurred.
BROWN, J., Concurring and Dissenting.----I concur in the majority‘s decision to affirm the judgment of the Court of Appeal because in the circumstances of this case the personal selection of the hearing officer by the county‘s attorney—who also prosecuted the matter—was sufficient to cause a reasonable person to doubt the adjudicator‘s impartiality. (Cf.
In Tumey v. Ohio, supra, 273 U.S. at page 523 [47 S.Ct. at page 441], the United States Supreme Court found a due process violation where the mayor-adjudicator had a “direct, personal, substantial pecuniary interest in reaching a conclusion against” one of the parties because only upon conviction would costs be imposed on his behalf. (See also State ex rel. Reece v. Gies (1973) 156 W.Va. 729, 737 [198 S.E.2d 211, 215-216].) In addition, the mayor was “charged with the business of looking after the finances of the village” and thus had an interest in the “pecuniarily successful conduct” of the criminal court over which he presided and which generated substantial village revenue through criminal convictions. (Tumey v. Ohio, supra, 273 U.S. at p. 533 [47 S.Ct. at pp. 444-445].) The Supreme Court has also allowed that a constitutional violation may arise “when the mayor‘s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor‘s court [by favoring criminal conviction]. This, too, is a ‘situation [as in Tumey] in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, (and) necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.’ [Citation.]” (Ward v. Village of Monroeville (1972) 409 U.S. 57, 60 [93 S.Ct. 80, 83, 34 L.Ed.2d 267].)
Invoking the rationale of Tumey and Ward, the court in Brown v. Vance (5th Cir. 1981) 637 F.2d 272, 276, found a due process violation where “a judge‘s bread and butter depend[ed] on the number of cases filed in his
The majority acknowledges that a disqualifying pecuniary interest must be direct, personal, and substantial, but makes no attempt to realistically apply this standard rather than an overwrought interpretation of the fee system cases. Indeed, it implies that a due process violation would arise from payment of even $10 or $15 (see maj. opn., ante, at pp. 1031-1032), an amount that today would not cover a hearing officer‘s parking in many cities.1
The majority grounds its reliance on the reasoning of Brown v. Vance, supra, 637 F.2d 272, on the possibility the county may in some future proceeding again solicit Abby Hyman‘s services as a hearing officer. This pecuniary interest may be less indirect than in Dugan v. Ohio (1928) 277 U.S. 61 [48 S.Ct. 439, 72 L.Ed. 784], in which the mayor‘s “relationship to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.” (Ward v. Village of Monroeville, supra, 409 U.S. at pp. 60-61 [93 S.Ct. at p. 83].) Nevertheless, on this record, I find it sufficiently speculative and insubstantial to dispel any due process concerns. (Cf. Gibson v. Berryhill (1973) 411 U.S. 564, 571 [93 S.Ct. 1689, 1694, 36 L.Ed.2d 488] [upholding a trial court finding that “a serious question of a personal financial stake in the matter in controversy was raised” where the board adjudicating charges of unprofessional conduct was composed of members who “would fall heir to” the business of those cited if the charges were sustained].)
Hyman was paid a standard hourly rate only for the matter she adjudicated. Unlike the circumstance in Brown, however, her primary employment is elsewhere, and from what we can glean from the record it does not appear she had any reasonable expectation of future employment with the county as a hearing officer. There is no conclusive evidence Green even discussed the
The demands of due process do not require either perfect ignorance or perfect altruism. Under these circumstances, I conclude that, even if “personal,” any pecuniary interest on Hyman‘s part was not “direct” or “substantial” within the rationale of Tumey v. Ohio, supra, 273 U.S. at page 523 [47 S.Ct. at page 441], and its progeny. (See Brown v. Vance, supra, 637 F.2d at pp. 284-285.)