*1 Dist., Feb. First Div. Two. 1996.] A066290. [No. LINNEY, Plaintiff and Appellant,
FRANK T. al., TURPEN et Defendants and Respondents.
LOUIS A. certified for publication.*]
[Opinion partial 976.1, Court, 976(b) is certified for opinion *Pursuant to California Rules of rules B, III III and III D. publication exception parts with the C *3 Counsel Sortor,
Clisham & David P. Clisham and Daniel S. for Plaintiff Connolly and Appellant. Renne, Hermann,
Louise H. Diane L. City Attorney, City Attorney, Deputy Rosales, Hanson, Marcus, E. Vlahos & and Rudy Jacquelyn Mara Bridgett, J. Garman for Defendants and Respondents.
Opinion
HAERLE, J.
I. Introduction officer, Frank T. San Francisco Appellant Linney, Airport police for six months because he lied to a officer a 1989 during suspended superior filed a in the a lost bracelet. investigation concerning petition Appellant court for writ of mandate to (employer superior compel employer to set aside the was for Judgment respondents, respondents)1 discipline. (a) costs. contends that the manner which including Appellant (b) the officer was selected him of due deprived process, evidence, (c) of the discipline committed error exclusion prejudicial discretion, (d) and the was excessive and constituted an abuse of imposed trial We affirm. court erred costs awarding respondents. airports; San Francisco Inter respondents Turpén, 1Named as were: Louis A. director of Driscoll, officer; Commission; III, Chief Airports Ronald C.
national Dave Wharton Commission; Police, City and and the Airport; San Francisco San Francisco Civil Service County of San Francisco. Background II. Procedural Factual for the Francisco began County (City) San working City Appellant in early vehicular traffic control officer and became airport action, in late rise to the The facts which permanent gave disciplinary 1982. officer, 28, 1989, are On as found not in dispute. Friday April mechanic, Underhill, Airlines United Brian found a valuable baggage bracelet, $14,000, about in the in front public roadway worth reportedly Underhill the bracelet to the attention one of the terminals. airport brought counter, ver and friend Avis Traffic Control Officer Val Underhill’s at the value han- Branston. After some discussion of the and appropriate Donna bracelet, Branston, the under- Underhill turned it over to dling it in to lost found when she that she would turn standing airport 1.May to work on Monday, returned *4 was to appellant assigned
In the late hours evening Saturday, April written the lost bracelet. concerning Appel- a investigate prepare report after on Sundáy, with Underhill on the telephone shortly midnight lant spoke He Underhill that the bracelet had been in his possession. 30. revealed April Monday. and that she would turn it in on said he had it to a friend given Underhill, had with A few minutes after the conversation ap- appellant James asked appel- on Lieutenant pellant’s duty, Lynch, officer superior to that his investigation. reported Lynch lant about the status of Appellant Underhill in Underhill’s toolbox the airport. the bracelet secure a tool- not not said about anything he did have a toolbox and had testified to his superior to It was this statement made appellant box appellant. a lie warranting appellant’s which the believed constituted officer employer termination. to lost bracelet in airport
On Branston turned the Monday, May found, but a review of the of the incident continued. handling Appellant’s Sergeant about bracelet’s whereabouts. nothing written stated report (theft with no again a of found property), crime Reilly prepared report Lieutenant Lynch reported of the whereabouts of bracelet. mention told him information and had had him inconsistent that appellant given with appellant story. report meeting the toolbox described Lynch’s stated, told you I have “I fucked should up, which spontaneously appellant everything.” 10, 1989, gave C. Gibbs of Police James
On Chief August Deputy for cause. On to dismissal notice his intention recommend appellant 19, 1989, notified appel- of airports, director Turpén, respondent September cause, review of on his based recommending that he was dismissal lant held 30. The dismissal August of a cause on show transcript lied superior to were on brought ground charges duties, rules following out his thereby violating of carrying in the course manual, order No. and chief’s conduct set forth in airport police 85-11: “Consistent /Personal Integrity. Police Manual Section 7150.41
Airport of Ethics’ is the commitment honesty the ‘Law Enforcement Code and shall remain above reproach Police Members shall Airport and integrity. of themselves or the integrity conduct any might avoid compromise it Member is enough may dishonesty single fellow Members. Airport cast not confidence and public suspicion upon, impair but, law Police the entire enforcement profession.” at all “Members are truthful Section required 7310.20/TruthJulness. times, or under oath.” whether “Members shall not Section and Criminals. 7380.47¡Assisting Suspects manner, information which directly communicate in or indirectly, any any acts to arrest escape of criminal or might quasi-criminal assist persons guilty or them evidence or which enable may dispose punishment, merchandise, or obtained.” unlawfully unlawful or money, property activity *5 a Police “As Integrity. Order #85-11¡Professional professional Chiefs if of must be considered our members impeccable Department integrity to Recent court decisions have we are realize our responsibility. effectively a of conduct and personal held Peace Officers to standard consistently higher renders Officer’s or truthfulness honesty rectitude. Any compromise will most credibility that Officer useless to law enforcement as Officer’s be ad- strictly truthfulness shall certainly Honesty be challenged. [ID to. will in disciplinary hered Termination be first consideration will First offense or truthfulness. any compromise honesty termination.” alibi attenuate accepted to a dismissal these rules entitled appellant of violation of charge That section requires 8.341.2 under San Francisco Charter section hearing hearing a and unbiased “be conducted forthwith hearing by qualified that by selected county under contract by city officer employed civil part, person employed under the service provides 2The cited charter “No section ‘permanent’ shall by the commission as provisions position . in a defined of this charter . . set forth the rules of the procedures (S.F. civil service commission.” Charter, 8.341, 1st unnumbered par.) § itself,
Civil service rules commission “The provide: hearing as required Charter, shall be conducted officer under contract to the hearing officer chosen follows in each 1. From appointing case: organizations [H as the such American Arbitration or the State Association Conciliation officers, Service which Or provide 2. From a customarily hearing list [U Commission, certified hearing officers the Civil Service such qualified list to be to contain current and at all time at least three kept names.” Rules, 6, 6.06, F. (S. Civil Service Com. rule subd. C Officer [Hearing § Sources].) 19, 1989, In his letter of informed September respondent Turpén appellant 3, 1989, that dismissal had been October scheduled for before Officer Dave Wharton Hearing III. During hearing, was held November denied motion to admit in appellant’s evidence an affidavit of Sergeant offered Boyd, by appellant prove had Boyd received a two-week suspension lying.
On November officer issued decision and order finding violated rules and should be without suspended 2, 1994, for six months. On court May the trial denied pay appellant’s 27, 1994, for writ of On June mandate. the court denied petition appellant’s motion tax costs. This timely appeal followed.
III. Discussion A. Selection Hearing Officer concedes that the officer was
Appellant selected *6 6, however, accordance with out rule set above. He that the method argues, selection, officer, of and the fact that the employer hearing the pays deprived of due review law de We of novo and find no appellant process. question (Crocker merit to the contention. National Bank City County San of 881, 139, (1989) Francisco 49 Cal.3d 782 P.2d Cal.Rptr. contention is based on the that had Appellant’s respondents premise an “unrestricted choice” a officer. This not selecting is true. hearing cause, discharged charges, removed or for except upon opportunity be and after an to written heard in be own defense.” [or her] indicated, 3Unless all otherwise citations to are San Francisco Civil rules Service rules. Commission the San Francisco Charter that the City provides hearing Section 8.341 of hearing conducted a and unbiased by “qualified employed shall be forth in the and selected set county under contract city procedures above, of civil commission.” As noted rule section the rules the service C, 6.06, to select a officer from hearing subdivision instructs employer (1) two which customarily provide hearing one of sources: organizations officers, (2) or a civil service commission list. stated without Respondent January at the before the court on that superior refutation hearing source, was the second Officer Wharton selected from civil Hearing that assumes this selection arguendo service commission list. Appellant occurred. list is out in rule
The method for the civil service commission set creating 6.06, D: “The Civil Commission shall certify section subdivision Service method: 1. The Commission following its list of officers hearing [*$ of circulation an an- general shall cause to be a published newspaper This shall nouncement of officers. announcement run openings (2) (5) either for of five or for two weekends working days period Commission, in its of 2. The shall include list discretion Commission ['ll a. satisfy such criteria: Have least following only applicants [U in the in the hearings capacity one conduct of year experience b. Have in the resolution of disputes officer. experience [*][] The 3. Ex- contracts. involving interpretation labor-management [f] for a period ecutive Officer shall the list of members so selected post panel of five which time working employees, public employee days during writing to demonstrate in that organizations may seek city departments review Executive Officer shall member of the is panel unacceptable. determine whether on basis the challenge such and shall challenges from the list.” individual should be eliminated approved reasonably cannot This for selection of officers procedure be placed selection. To characterized as an “unrestricted” City granting list, criteria, and are they meet once on the officers must certain list, have an opportu- on the and employee organizations placed employees did utilize that them. It challenge nity apparent opportunity. was “deprived Officer Wharton Hearing
Appellant suggests had sole who by employer because he selected impartiality” *7 officer hearing him. to According for appellant, paying responsibility for the favorably case in deciding “had a financial interest thereby [the] officer, and Wharton who hired Respondent Respondent Turpén, appointing E, 6.06, 6, section subdivision the fact that rule him.” ignores paid Appellant a mechanism which could have provided the com- challenged of the officer before the It states relevant petence hearing hearing. part: “The may challenge officer who is employee competence hearing scheduled to hear the case on the basis that the officer in some employee’s that, demonstrable manner biased or prejudiced against employee therefore, the will not be afforded a fair employee hearing. challenge must be made written affidavit received at least 24 [by hours before the hearing].” to failure utilize this of an
Appellant’s procedure deprived respondent to address the claim of lack of or of bias opportunity impartiality, (Barnes from on prejudice, precludes appellant raising point appeal. (1978) v. Personnel Department Cal.App.3d Cal.Rptr. event, In we find due contention to be without merit. any appellant’s process
In (1982) Titus v. Civil Service Com. Cal.App.3d Titus), (hereafter the Court of accurately summarized Cal.Rptr. Appeal 699] the standard of due to such an issue: “Minimal standards of process pertinent receive, due that a to process require public employee prior imposition (2) the Notice of the action discipline: proposed, grounds discipline, based, (4) the and materials which the action is charges upon to to the action. To opportunity respond opposition proposed [Citations.] to must afford the an meaningful, right respond employee opportunity his side of the before a reasonably impartial present controversy [or her] and noninvolved reviewer who to recommend a final possesses authority that the last of the matter. argues disposition Appellant [Citation.]” view, element of due In our this contention is not missing. either the facts or the law. supported by that, concerned, noted contrary
As far as the facts are we have already did not have an “unrestricted choice” appellant’s theory, respondent of the hearing officer. also argues payment Appellant biased, more officer officer because the renders by respondent will cases he decides the more cases favorably respondent respondent, failure to raise him. While this is give interesting theory, appellant’s record on the issue below the creation of precluded meaningful point.4 event, Due as a matter of law. In we do not find the theory compelling indeed, for, does not require perfectly impartial past nothing officer’s example, developed the record below tells us about 4For rulings, period encompassed those airport, volume of cases for the what of time is prior rulings, etc. nature
771 (1981) (Andrews v. Labor Bd. there is no such Relations thing. Agricultural 781, 590, (hereafter P.2d An Cal.3d 623 Cal.Rptr. 28 790-791 [171 151] Rather, from drews).) and as the Titus suggests, foregoing quotation that due in these our Court has established is process principle Supreme reviewer.” a noninvolved only “reasonably circumstances impartial, requires 731, (1978) v. Los 22 Cal.3d 737 (Williams Angeles Cal.Rptr. County [150 of 475, (hereafter Williams).) of 956], added This formulation 586 P.2d italics has and followed not in Andrews and Titus but the rule been quoted (See, e.g., Regents University other well. Coleman v. several cases as 521, 589]; Civil Service (1979) Cal.Rptr. 526 Cal.App.3d 93 [155 California 1222, (1985) v. 166 1227 Agency Cal.App.3d Assn. Redevelopment [213 1]; Los City Burrell Cal.Rptr. Angeles Cal.App.3d 427].) Cal.Rptr. case the rule articulated in Williams most
Clearly significant applying There, Andrews. an adminis sought disqualify is agricultural employers case, an trative law officer from unfair labor because practices firm had and farm persons law regularly represented Spanish-sumamed (Andrews, 787.) The as 28 Cal.3d at Court workers. supra, p. Supreme bias, sumed, in an allegations that these could result arguendo, appearance a and held that such an not a valid for ground disqualifying appearance officer. judicial “ ‘In
The court earlier case held: order quoted approval to be a against party must judge prejudice particular disqualified, so that it appears . . . sufficient to impair judge’s impartiality added.)” (Italics (Andrews, supra, that a trial cannot be held.’ fair probable Ensher, Barsoom 28 Cal.3d at Alexander & v. Ensher quoting Court Cal.Rptr. explained Cal.App.2d follows, of deciding this two-tier “The first consists inquiry inquiry has set sufficient facts to demonstrate whether forth moving legally party determination, bias of the officer. the challenged After that judicial will court such bias or a must still decide whether reviewing it trial be held before that judge.” render fair cannot probable (Andrews, 792.)5 at supra, 28 Cal.3d. that “our courts leading
The court reviewed other cases and concluded unless the moving party have never required disqualification judge Although, as our about fairness. opinion repeatedly 5The Andrews lead addresses concerns (dis. 793), colleague opn., expressly Justice dissenting correctly post, p.at Mosk did *9 772 the actual existence of bias.” been able to demonstrate concretely
has 793.)6 acknowledged, At this the court (Andrews, 28 Cal.3d at point footnote, both decisional law and statute provide disqualification in a bias, officer, actual where such is even without of of a proof The cited of the integrity legal system. examples to preserve required (See Code financial interest in the outcome. an actual or included personal Proc., 170.1.)7 Civ. § 568, workers Burrell v. Los 209 City Angeles, supra, Cal.App.3d In of who the same official
attacked an administrative procedure permitted and recommended instituted and investigated disciplinary proceedings on the of severity penalty imposed. to have the final say particular penalty, law state procedure The court found that federal law permitted In so of actual bias or showing prejudice. follows the federal requirement (Id. in Andrews. at ruling pp. reasserted the the court doing emphatically from facts of the instant case are 575-582.) distinguishable Although Burrell, instructive here because it expressly applies in the decision is those disci in an administrative to the fairness analysis requirement due process the less exacting because it highlights It is also significant plinary hearing. administrative as hearings compared due process requirements applicable was also stressed (Id. This latter point judicial proceedings. 28 Cal.3d at (Andrews, supra, in his Andrews concurrence. Justice Newman Newman, J.).) (conc. 796-797 pp. opn. on in support cases even remotely point cites no California
Appellant coin, find such authority we claim. On the other side his due process Cal.Rptr.2d 16 1795 Cal.App.4th Beach Binkley City Long There, chief its removed (hereafter city police Binkley) persuasive. 903] selected manager of misconduct. The city for various counts (Binkley) to make right and retained to conduct an appeal hearing, officer and to the of the hearing to the objected scope the final decision. Binkley recommended that the final manager’s authority. city sustained, The Court agreed. Appeal city manager discharge in the removal procedure, had received due process found that Binkley (former Code Civ. at the time of the Andrews decision in 6The fact that the statute effect Proc., 170, (a)(5)) section by Code of Civil Procedure subsequently replaced subd. § Catchpole v. Brannon 170.1, (a)(6)(C), acknowledged 36 subdivision as we 237, 440], way import of the California Cal.Rptr.2d in no lessens Cal.App.4th 246 [42 order to find showing required is Supreme Court’s Andrews holding type as to what of a bias. that, way the dissenting colleague by virtue of the appellant and our position 7If it is the interest" in the has a “financial compensated, he she thus officer is selected Andrews, supra, that, case, suggested by footnote 5 of to note we would be constrained Civil defined in Code of context should be as page “financial interest” Cal.3d 170.5, (b), nothing more. nothing less but also Procedure section subdivision protections calls for such procedural flexible and that “due stating at (Binkley, supra, Cal.App.4th situation demands.” aas particular (1976) 424 U.S. Eldridge Mathews v. citing 32-33, S.Ct. *10 and was not neutral claims that court rejected a afforded when he was treated fairly had been that Binkley
concluded examiner, not who was a before professional factfinding hearing ” “ 16 Cal.App.4th (Binkley, supra, in the controversy.’ ‘embroiled “ ‘Bias could not prevail. level of bias 1810.) at the appellate An allegation A established. party’s be clearly and must are implied prejudice for as a basis disqualifica cannot alone serve of bias unilateral perception and it must a party be shown against particular must Prejudice tion. The challenge the adjudicator’s impartiality. enough impair significant facts demonstrating set forth concrete must the fairness of adjudicator ” (Ibid.) or bias prejudice.’ Here, a claim that respondent no facts Binkley, support he the benefit of a presumption He was entitled to officer was biased. ’ ” ‘“ case judged and intellectual discipline” was “of conscience he had indicates 1810.) Nothing 16 atp. (Binkley, supra, Cal.App.4th fairly. toward animosity or harbored any in the matter a financial stake personal appellant.8 dealing on cases heavily dissenting colleague rely and our
Appellant Teachers v. (E.g., in agency shops. First Amendment rights implicated (hereafter S.Ct. 106 (1986) 1066] U.S. Hudson 475 292 [89 (7th No. 1 Union Local v. Teachers Teachers), Chicago Hudson affirming them Hudson).) do not find (hereafter We 1984) Cir. 743 F.2d cases, education had a collective and board of In those the union persuasive. of teachers the exclusive agent that named the union bargaining agreement in the contract required clause A union security and other employees. share unit to their proportionate bargaining pay nonunion members the contract. Nonunion administering negotiating the union’s cost estab “challenging procedure the board teachers suit brought against for determining contract to the collective bargaining lished pursuant to the support must contribute nonunion employees share that proportionate F.2d at p. (Hudson, supra, union as collective bargaining agent.” of the 1190.) The district court upheld procedure. down states have struck high of two in which the courts 8In contrast are decisions salaries, stake, their over and above direct financial judges where had a
procedures
(State
Shrewsbury
W.Va. 540
v. Poteet
judicial duties.
ex rel.
performance of
fees,
salary,
than
accept
other
[magistrates may not
S.E.2d.
The Hudson court stated: paid to the union— cases favorable deciding him a financial interest gives him, (Hudson, him.” supra, which pays which hires and incidentally remand, “that 1195.) suggested on the court F.2d at For p. guidance notice, hear minimum administrative would be fair a prompt constitutional or local some other state agency—the before the board of education or ing before hearings for evidentiary the usual safeguards incorporate the agency’s review of right administrative agencies—and (Id. at decision.” p. decision but in a Court affirmed the judgment,
The United States Supreme The court held the Court of than that of Appeals.9 much less expansive “did was that it the union three “fundamental flaws” in procedure the third of decisionmaker.” decision an by impartial for a reasonably prompt not provide (T 247].) “The at eachers, p. 475 U.S. at p. supra, [89 it said, we do not find Appeals, but judgment of the Court “We affirm the 9The court (Teachers, supra, 475 U.S. opinion.” questions discussed in its necessary to resolve all of the 243].) p. L.Ed.2d at p. at 301 [89 whose First Amendment are affected rights nonunion employee, by the burden of entitled to have itself and who bears agency objecting, shop fair, addressed in an manner.” objective his objections expeditious, (Ibid.) on First The court it is Amendment emphasized impingement interests that (I decision an decision-maker.” “reasonably requires prompt impartial 249].) L.Ed.2d at p. p. [89
d. The com! also held that the union’s “unrestricted choice [of arbitrator] (Teachers, from the state list” was 475 U.S. at inadequate. p. 248].)
L.Ed.2d at But at the same time the court the Court of rejected administrative that a “full-dress eviden suggestion Appeals hearing, (Id. fn. 21 L.Ed.2d at tiary safeguards” required. if
The court noted that arbitration would be expeditious satisfactory (Ibid.) arbitrator was not one unrestricted choice. party’s We find these teachers union cases for at least four reasons. inapposite all, Second, First of in the case at hand the First Amendment is not involved. “unrestricted”; the choice of officer was not was the choice confined to two but the scheme allowed highly reputable panels, procedural for not one but two opportunities challenge Third, or the the Court
employee organization. employee although Ap- bias, viewed the of the arbitrator one peals payment party establishing *12 Fourth, Court neither discussed nor affirmed that view. and Supreme most we view the probably California Court’s importantly, Supreme rulings Andrews, above, in Williams and discussed to be as to how controlling of this in expansive courts state can and should be the admit- applying flexible of due tedly concept process.10
Thus, in our view we are constrained to examine
this issue
the terms
circumstances, i.e.,
our
Court has told us to
in such
the test of
Supreme
apply
dissenting colleague
10Our
arguments mainly,
entirely,
process
rests his
if not
on due
cases
course,
Supreme
principal
from the United States
Court. Of
and
that court is
should be the
guidance
process
source of
as to
what
federal Constitution’s due
clause means
other—contexts,
concept
this—and all
but
the whole
of due
is so flexible and
because
(see,
application
dependent
underlying
e.g.,
Eldrige, supra,
its
424
so
on the
facts
Mathews v.
32-33]),
pp.
pp.
principal
U.S. at
334-335
L.Ed.2d at
we think the solution to the
issue
[47
courts,
presented in
of our state’s
decisions
this case can and shoúld be found
the decisions
But,
length
additionally,
respectfully suggest
we have
discussed at some
above.
we
way
upon
compel
United States
Court decisions
Kline relies
in no
a different
Justice
decisions,
together,
result
we reach
teach
that due
than
here. Those
considered
us
(see
“slightest
require disqualification
judicial
does not
of
officer for the
interest”
a
825-826,
823,
(1986)
Aetna
fn. 3
L.Ed.2d
Insurance Co. v. Lavoie
475 U.S.
[89
Life
834-835,
(hereafter Aetna))
“speculative
106 S.Ct.
or where the interest
is either
1580]
(id.
(Marshall
contingent”
836])
p.
p.
v.
826
L.Ed.2d at
or “remote and insubstantial.”
[89
Jerrico,
is,
182, 188-189,
(1980)
1610].) It
Inc.
446 U.S.
243
100 S.Ct.
L.Ed.2d
[64
“ ‘
however,
“direct,
substantial,
pecuni
required
personal,
where the officer has a
[and]
’ ”
(See Aetna,
834],
ary”
supra,
quoting Ward
interest.
In the case before us the record does not sustain even an “appearance If, earlier, bias.” as noted had shown appellant how cases many Hearing decided, Officer Wharton had how of those were for the many San Francisco and how Airport, were in many rulings favor of that an employer, objective person might able to perceive appearance bias. The record is devoid information, of even a scintilla of such yet and our dissenting would colleague have us rule not Officer Wharton was Hearing serve, but disqualified that the entire San system Francisco selecting civil service officers was and is defective. This we constitutionally *13 decline to do. respectfully such would Any be based ruling upon nothing more than a of an charge appearance bias a case where failed appellant to take advantage not one but two distinct opportunities challenge officer on such grounds. (hereafter Ward)), quoting Tumey 749, 754-755, v. Ohio 273 U.S. L.Ed. [71 (hereafter Kline, however, 47 S.Ct. Tumey).) A.L.R. Justice 1243] stresses that language Tumey speaks from “possible temptation” which of a judge suggests to a and that (Dis. applying. 787-788.) is the test we should be opn., post, pp. reject We all, cases, contention for two reasons. First of we think the most recent decision in this line of Aetna, “possible makes clear that temptation” does not include instances where the is interest (Aetna, “speculative contingent” supra, 836]), p. 475 U.S. at p. L.Ed.2d at Second, is the absolute Tumey most that is involved here. even if and Ward are considered Aetna, without the benefit of they clearly we think “possible ^temptation” mean that the direct, substantial, mentioned occurs personal, when there is a pecuniary interest and that the language use of enlarge the former prohibited does not the nature of the interest.
Our conclusion on this issue should not be construed as an embrace of the and, the San in this case Francisco procedure employed by Airport presum- of San in such cases Francisco ably, City County generally. by Common sense a minimal coupled degree experience today’s arena of alternative resolution the conclusion compels burgeoning dispute arbitrator, that some form of mutual selection of an mediator or to the current San Francisco This officer is preferable Airport procedure. where, here, so is would seem to be particularly person paid entirely we have no interest in But selecting party. accepting appellant’s invitation—now seconded our elevate a dissenting colleague—to prefer- a matter of federal or state ence for mutual over unilateral selection to on the facts of this case and the rather constitutional right, especially given clear our Court in Williams and Andrews. articulated principles Supreme of that court’s that due only The combination holding process requires (Williams, noninvolved reviewer” 22 Cal.3d at supra, “reasonably impartial, 737) and the States in Aetna that that United Court’s holding doctrine does not mandate where interest is disqualification “speculative (Aetna, 836]) 475 U.S. at L.Ed.2d at contingent” us, makes clear to even if it does not to and our crystal dissenting that due does not is colleague, reversal here. That process compel concept not so that it can be extended to cover a circumstance such as the pliant where, most, one an inferior officer selection present To hold would be an otherwise exercise activism that prescribed. would as it is obvious. regrettable
B.-D.*
IV. Disposition is affirmed. judgment PHELAN, I concur in the of Justice Haerle rejecting opinion J. claim that he was denied due because had an appellant’s respondent “unrestricted choice” in the selection of the officer as well with the discussion of the other issues resolved. I write to stress that separately conflict of or indirectly) interest” issue was never “pecuniary (directly raised in the mandamus before the court which we proceedings superior review. I believe that issue has been waived and we should not Accordingly, *14 consider it.
That the below is conflict of interest issue was not pecuniary presented clear from the record before us. The second verified unmistakably petition footnote, ante, page *See 763.
for writ of administrative mandamus focused entirely on the issue of “unre- stricted choice” and the failure to “an give to appellant opportunity partici- in the pate selection officer.” Nowhere did appellant allege for aside his ground setting that he had been denied due suspension process because Officer Wharton had a financial conflict of Hearing interest since he was “under contract” with the lower court respondent. Throughout pro- ceedings, appellant consistently his theme that his due only pursued denial from resulted unilateral and unrestrained choice respondent’s in the selection of the officer. There was no claim that it simply arose from Wharton’s financial to alleged incentive decide his case favor- ably respondent. first assertion of a claim of denial
Appellant’s of due based upon financial conflict of interest in his brief in this court. appears opening mentions, Therein he almost and in initially parenthetically passing, Later, “was also . . . Wharton’s he respondent responsible fees.” paying and adds it to his “unrestricted choice” develops point argument. failure to raise the financial conflict of interest the court below precludes our (See consideration of it on North Coast Business Park v. Nielsen appeal. (1993) Construction 104]; Co. 28-30 Cal.App.4th Cal.Rptr.2d [21 al., et Cal. Practice Guide: Civil Eisenberg (The & Writs Rutter Appeals 8:240, 1995) 8-80.) Group 8-78 to pp. 08:229 of the waiver rule is
Application in this case particularly appropriate because factual issues related to the financial conflict of interest alleged Industries, (Richmond were never in the trial court. v. Dart Inc. developed (1987) On the record before Cal.App.3d Cal.Rptr. us, we do not know the extent of Wharton’s financial conflict simply alleged that, rule, of interest. We know under the commission he was “under only contract” to financial interest he have respondent. Any might deciding case could de minimis or it could be of a nature which appellant’s Thus, would lead him to favor unquestionably whether there was respondent. a financial interest of such a dimension which would rise to the level of a “direct, substantial, interest in a conclusion personal, reaching (Aetna against” Insurance Co. v. Lavoie U.S. Life 823, 832-833, 1580]) 821-822 106 S.Ct. and constitute a denial of due can be the We do not process, subject speculation. simply know its nature or and can if magnitude its only guess impact, any. Justice
Presiding Kline’s dissent that the “under contract” suggests provi sion of rule 6.06 of the San Francisco Civil Service Commission Rules “tells (See us all we need to know.” dis. He would be post, right opn., is, if his were correct—that under v. Ohio 273 U.S. premise Tumey *15 1243], even a economic L.Ed. 47 S.Ct. 50 A.L.R. slight 510 [71 However, offends due as Justice way incentive to rule particular process. notes, the United States Court has Haerle’s specifically opinion rule that a decision “to read Tumey constitutionalizing any declined with ‘the interest’ constitutes a rendered by judge slightest pecuniary Lavoie, (Aetna Clause." Insurance Co. v. violation of Due Process Life 825-826, U.S. at fn. 3 L.Ed.2d at The even more pp. [89 which the dissent claims exists virtue of attenuated temptation,” “possible the “under contract with the cannot authority” provision, perforce appointing to a of due give rise denial process. I believe the financial conflict of interest issue has not been
Accordingly, in that of the controversy and decline join aspect preserved appeal otherwise addressed by my eloquently colleagues.
KLINE, J.,P. Under the we review this case Dissenting. procedure that wishes to a civil servant authority,” employer, discharge “appointing controls the selection of the officer who deter- finally completely If this were not mines whether the will be effectuated. discharge proposed to skew the conflict of enough process against employees, pecuniary inherent in Because their income interest does so. process certainly hear, the number of cases officers have an depends upon they economic incentive to rule in favor of the who them provide employers remunerative work. “does not sustain Justice Haerle’s statement that this selection process ” ante, (lead 776)
even an of bias’ ‘appearance opn., incomprehensi- I conclusion that blind to what consider an obvious bly reality. My not, and other civil servants are denied due of law is as Justice Haerle of a exercise in activism” says, product “regrettable” “judicial Constitution, ante, (lead 777) as that but of for the opn., respect of this state and document has been construed the courts unmistakably nation, in or distorts. opinions majority ignores seen, follow will be has refused to unjustifiably
As
majority
(1986)
I. The rests on the majority’s analysis contentions that respondent employer officers; that, event, did not have an “unrestricted choice” of hearing had the right challenge competence to the and that hearing; make such a he waived prior by failing challenge to do so now. These right contentions do not stand toup scrutiny. rules, Under the San Francisco civil service choice of employer’s officer is less restricted than the “unrestricted” choice considerably condemned in Chicago Teachers Union. all, of
First there is no restriction on the size of the of meaningful universe officers from which the potential hearing must choose. appointing authority C Subdivision of San Francisco Civil Service Commission rule section (Rule 6) “[fjrom 6.06 the selection to be made not a list of permits just Commission,” qualified hearing officers certified the Civil Service but also from “such as” the organizations American Arbitration Association. therefore select a broad appointing authority may individuals associated with resolu- range public agencies private organizations providing dispute tion services. if Hundreds not thousands of inhabit this people capacious universe, and the number to be increasing.1 appears rapidly out that the officer in
Pointing this case was chosen from the civil list, service commission’s criteria that describes various majority must be satisfied in order for a on officer’s name to be placed 1See, Note, e.g., Litigation Becoming Private Justice: How Civil a Private Institution—The 621, 626, Breznick, Dispute quoting Rise Private Centers 23 Sw.U.L.Rev. Arbiters 27, 1992) Growing (Apr. page (panelists Out Court’s Gridlock Crains’s N.Y. Bus. at 62,000 year,” last American Arbitration Association “handled more than cases nationwide i.e., Kim, 1991); Rent-A-Judges Selling and the Cost Justice 44 Duke L.J. (“Over decade, past judges exponentially”). the number of retired for hire has increased list, be char- reasonably that such an elaborate “cannot suggesting ante, (Lead an ‘unrestricted’ selection.” City opn., as granting acterized cannot, however, cured The due deprivation *17 to select a exercises his or her unilateral right in which an employer manner officer, in the mere existence the constitutional lies because hearing problem an interested the decisionmaking process by party. total control over of such can the officer challenge hearing claim that employees Respondent’s inaccurate, and for several reasons. the officer is also selected by appointing First, of actual be made on the basis of a showing a challenge may only in the administrative Unlike who are involved regularly bias.2 employers, of the servants are far less to be aware likely individual civil process, Furthermore, Rule 6.06 dis- officer. of any particular hearing predilections the officer selected the by from challenging hearing courages employees challenge have bear the costs such a they may employer by providing an challenge the need not defer to any entail.3 may Finally, employer make, even if the information to and the nerve to have may justify employee the Subdivision E of Rule 6.06 requires the shows actual bias. employee that the appointing officer the event hearing selection of another “[i]n cannot afford the authority shall determine that the officer hearing employee does not which is the employer, a fair If the hearing.” appointing authority, bias, to select with the claim of the can refuse agree employee’s employer another, the and the civil service rules for no from provide appeal employ- er’s final determination. event, to chal-
In the reason an theoretical signal right any employee’s irrele- the officer selected the is constitutionally lenge hearing by employer Rule 6 the due created by vant is that it would not solve process problem another officer. even if it were and the selected hearing accepted employer select, select, another remains free to and will employer presumably rather to the position believed to be more sympathetic employer’s person eliminate the Nor can a challenge than that discharged employee. interest of the officer’s conflict of interest. The economic hearing where the officer not be a or as great hearing may problem, problem, officer, conventionally select the as is hearing contending parties jointly may challenge compe employee E an 2Subdivision of Rule section 6.06 states that hearing by authority “on the basis that the appointing tence of the officer selected that, against employee prejudiced officer is in some demonstrable manner biased or therefore, hearing.” employee will not be afforded a fair bringing charges against department 3Subdivision I of Rule section 6.06 states that “[t]he except “incurred as a result of employee pay shall officers” costs an all fees officer)” (such by challenges of request employee as costs occasioned . . . [a] employee.” which shall be borne done.4 selected, Absent the employee’s consent to the the court below refused to require, process prescribed Rule 6.06 is inherently incapable producing reasonably impartial uninvolved decisionmaker required by Charter of the City County of San Francisco, and (Titus Civil Service Com. Constitution. 357, 362 699].)
Cal.App.3d Cal.Rptr. officers selected Hearing pursu- ant to that rule will have an necessarily interest in the outcome of the cases decide, they which cannot be reconciled with due (In re of law. Murchison 942, 946, 349 U.S. L.Ed. 75 S.Ct.
The fact fails to make an employee that would objection not solve the asserted constitutional violation even if it were sustained cannot preclude *18 the from the issue on Barnes v. Personnel employee raising Depart appeal. ment 94], Cal.App.3d which the Cal.Rptr. relies majority on for the that proposition failure to make appellant’s such a quixotic terminal, case, is objection sustained, is as the in that inapposite, objection if would have solved the Furthermore, asserted of due deprivation process. in Barnes because the cause, employee could be terminated without his failure to to the timely object officer was beside the really point.
II. One of the chief flaws in the majority is its fundamental miscon- opinion of the issue. The in ception claim this case is not that Officer Hearing Wharton has an actual bias against employees in generally or that particular, appearance bias is created by to something unique case, Mr. Wharton. The in claim this which differentiates it from most of the 4One commentator believes that not even completely problem consent can eliminate the by created the fact that may “referees be influenced party to decide cases in favor of the more likely bring (Note, to cases to them in the Rent-A-Judge Experiment: future.” The California Policy Constitutional Pay-As-You-Go Considerations Courts 94 Harv. L.Rev. 1592, 1608.) “To a certain extent problem this requirement, would be solved the consent since no one would consent to a reference if he knew opponent. the referee would favor his however, safeguard, As a only consent would protecting be effective in the integrity of proceedings reference parties if all perfect knowledge had about all referee decisions. Those parties reference, however, greatest with the experience knowledge. with would superior have parties Similar in other contexts have been ‘repeat players,’ called but under the market reference, prevail conditions that they might steady Steady better be termed customers. represent important any customers an asset to seller and a referee would find it in his self course, parties overt, interest to favor those possible. where Of favoritism could not be for time, opponents steady then the of the customers would refuse to consent. But over referees give safely steady could customers the Steady benefit of the doubt more often than not. suspect customers would giving edge, their status was them bring a small and this would customers, them back into fights. reference for future opponents, But their the one-time would systemic not be aware of the working against subtle bias They them. could not therefore make fully they (Ibid., omitted.) informed choice when consented to the reference.” fn. is that the of bias is upon, relies inherent majority danger cases selection prescribed process. Union,
While
Teachers
Objecting nonmembers federal district brought challenging others, the union’s the procedure ground, on that it denied among their Fourteenth Amendment due district court process rights. The the rejected challenges the Circuit upheld procedure. Seventh reversed.
Circuit Posner out Judge that the arbitrator was not pointed independent which, but the “It is true picked by union. that he is from a list picked told, names, we are contains about 50 the thus union’s choice confining somewhat. But even if the Illinois law the union on the identical imposes of fair duty that the union if it representation would have were to the subject Act, Railway Labor Act or the National Labor Relations the union’s rela- would, to members of the unit tionship as a realistic dissenting bargaining matter, contain a sufficient residue of to raise adverseness serious objections the to union a choice of giving unilateral arbitrator .... There are 15 Illinois, federal district judges active service in the Northern District of all accredited; and the union to a unimpeachably yet would defend try (or dissenters!) that let it to procedure in this pick judge preside case. (473 1195.) F.2d at p. [Citations.]” case, noted,
In the present select from an almost employer may unrestricted universe officers affiliated with virtually any public resolution private dispute organization (including entities de- corporate officers) as well as signed profit organization participating hearing selects, is a for-cause to the officer he or empowered reject challenge she even is to bear the assuming willing additional costs a chal- employee entail. The to an lenge may employer’s relationship employee targeted a contains “residue of adverseness” sufficient to make discharge certainly total control over the selection a due employer’s process prob- lem. But the unilateral to select the officer is employer’s power no means the source of the constitutional problem. Union, here, that the Posner noted situation in Teachers
Judge Chicago arbitrator, was even more “troublesome” because unlike a federal “[t]he is not that is of the number of cases he salary judge, paid independent over, or of the of a The arbitrator is for each goodwill presides litigant. paid arbitration, and this him a financial interest in cases gives deciding favorably him, to the union—which hires man him. incidentally pays ‘[N]o ” (Hudson where has an cases he interest the outcome.’ permitted try Teachers Union Local No. 743 F.2d at Chicago supra, quoting Murchison, 942, 946].) In re U.S. L.Ed. The Seventh supra, 349 Circuit’s assessment of the and determination that it violated the procedure due clause was affirmed Court. Teachers (Chicago Supreme Union, 475 U.S. Court focuses Although opinion case, most on First Amendment issue not in the instant heavily present Court that “the ‘most agreed Judge Posner expressly conspicuous feature of the is that from start to finish it is controlled entirely procedure union, which is an interested since it is the party, recipient agency *20 ” (475 at fees U.S. at 308 L.Ed.2d paid by dissenting employees.’ [89 248], 1, Hudson v. Teachers Local No. 743 F.2d at Chicago supra, quoting 1194-1195.) The Court observed that review of the determina- pp. tions of union officials an arbitrator selected the union was by by inadequate “because the selection the Union’s unrestricted choice from the represents (Ibid.) state list.” union, the it is controlled rather than a labor
Though by employer in the case is from indistinguishable procedure challenged present materially who will deter- that condemned Teachers. The officer Chicago hearing mine the of the at issue be blind to the cannot propriety employee discharge fee, of the him or her and interest that issue which selected party pays
785 and has the to do so in future cases.5 And it is not ability again only interests of the involved in a case that affect particular employer given may officer’s attitude. A hearing officer seen other as employers indulgent interests of wish to unduly employees they runs discharge, either, he the risk or she will not be selected them or will not be selected case, otherwise be the and will suffer the frequently might adverse Therefore, it, economic whether act on hear- consequences. regardless they officers selected to Rule 6 have a financial interest in ing pursuant rejecting the claims of those of employees officers. In upholding appointing contrast, the officer has no incentive to “accord favor to equal customers,” (Kim, one-time such as and the Cost appellant. Rent-A-Judges Justice, 166, 177-178, omitted.) 44 Duke L.J. Selling fns. like Finally, Union, the arbitrator in Teachers Chicago decision Charter, (S.F. selected that controls “final.” party process 8.341.)6 § claims Teachers Union is for majority Chicago four rea- inapposite
sons. Not one of them is persuasive.
The first reason is that the
case does not involve the First
present
ante,
(Lead
Amendment.
This is almost like
that the
opn.,
saying
(1966)
694,
rule announced in Miranda v.
P.2d Williams v. Los Cal.3d County Angeles 956]; 586 P.2d (9th 1991) Walker v. Cir. Cal.Rptr. City Berkeley 182, 183.) F.2d The second basis which the upon majority purports distinguish Chicago Teachers Union is that the choice of officer in this case was not *21 5Rule 6 expressly provides department bringing charges against employee an “[t]he 6.06, pay (Rule E.) shall all fees of officers .. . .” subd. § Chicago majority 6The purports system to differentiate the at issue here from that at issue in Teachers’ Union ground on system reviewing the that the administrative we are “is followed ante, by (Lead 774.) court review at the appellate opn., p. trial and levels.” In fact there is case, Chicago no such presumably difference. Judicial review is available in Union, Teachers’ scheme, provided regulatory not because it is for in the but because it is Proc., (Code 1094.5.) available procedure. under codified rules of civil Civ. §
“unrestricted,” and the can the one employee assertedly challenge selected however, the As there are not by appointing authority. already explained, from, “about 50” an select as in just persons appointing authority may Union, Teachers Chicago but hundreds if not thousands of many individuals (most to be selected under the civil service rules or at least eligible many business); whom are such are economically dependent upon challenges the additional costs that be on may who discouraged by imposed employees selected; to the if a is made the object challenge it, can no matter how the employer unilaterally finally reject compelling of bias and most be. would showing may Finally, significantly, challenge as it would result simply be useless even if it was allowed the by employer, in the selection the another to be employer more officer felt than to who would have the sympathetic management employees, precisely same interest as the one removed. pecuniary conflict of
The third which basis Justice Haerle endeavors unsuccessfully upon Teachers Union is the distinguish Chicago Court “although Appeals bias, viewed the of the arbitrator one the payment party establishing ante, (Lead Court neither discussed nor affirmed that view.” Supreme opn., from As Court refrained p. previously explained, Supreme conflict of interest not because it with the discussing pecuniary disagreed issue, Seventh Circuit on that but because it did not need to reach it. merely Court affirmed the Seventh Circuit without Supreme providing any indication of with this of the intermediate disagreement aspect appellate court’s view on this matter.7 The Seventh Circuit’s of the analysis pecuniary conflict of interest not makes eminent sense but its remains only opinion disagreement respect Supreme expressed any 7There is one with Court Appeal, Supreme explanation the Court of and the Court’s of that difference dramatizes any disagreement portion Appeal’s opinion pertaining absence of with the of the Court of pecuniary stating “is conflict of interest. After that review a union-selected arbitrator inadequate represents also choice from state because selection the Union’s unrestricted footnote, (475 248]), p. say, by way of list” U.S. at L.Ed.2d at the court went on to however, agree, hearing, “We do not with the Seventh Circuit that a full-dress administrative Indeed, evidentiary safeguards, part with of the minimum.’ we think that ‘constitutional expeditious might satisfy requirement reasonably prompt by an arbitration of a decision decisionmaker, long represent impartial so as the arbitrator’s selection did not the Union’s here, procedure unrestricted choice. In to the Union’s selection an arbitrator contrast frequently represent party’s state-approved does not one choice a list arbitrators. from added.) (475 248], This statement U.S. at fn. 21 L.Ed.2d at italics [Citations.]” needed, shows, disagreement any showing Supreme express if how to that the Court knows Furthermore, any part opinion judgment of a lower court’s whose it affirms. pecuniary why did not address the substance of the statement indicates Court emphasized by Appeal. Clearly, the union’s unilateral conflict that had been the Court of discussion power process; officer was all that was needed to condemn the to select the signifi only unnecessary might dilute the conflict of interest was not but dispositive. cance of the threshold factor the court found *22 event, In the selection at issue in this case would authoritative. any process if, case, even as is not the Court disagreed be unconstitutional Supreme of The with the Seventh Circuit’s conflict interest. analysis pecuniary the due conflict of interest does not create but merely aggravates pecuniary maintained, violation. As has consistently process Supreme Court’s in Teachers Union would us to analysis Chicago holding require rule in his favor even if a officer’s income did not on the depend there no number of cases he or she was selected to hear and was pecuniary I conflict of interest. cannot would imagine, my colleagues example, of a rule or defend statute interested constitutionality permitting party (or case) in in cases such as this to decide which of the 28 court superior in San Francisco will over judges and decide the preside proceedings matter, unbiased, even all are to do so and their though competent facially review, are to and their incomes are not determined judgments subject number of cases hear. Unilateral selection of the a they this, stake, to a such as in which an is at is no party dispute important right less constitutionally objectionable. seems he majority unwilling that who accept proposition pays tune, can call the because the Court piper merely felt it Supreme so in
unnecessary explicitly Teachers Union. But the say Chicago Court has made that in to the very contexts case as point germane present Chicago Teachers Union.
The seminal case regarding Tumey conflicts interest is Ohio, 510, which, seen, 273 U.S. will has been in an applied manner, increasingly so as to embrace administrative expansive proceedings of the sort we confront in In this case. a Tumey mayor-judge paid, addition to his a certain sum in each case in which he found regular salary, the defendant of a law violation. The court found this a denial guilty liquor of due “The process: received for his fees and costs in the mayor present $12, case and from such costs under the Prohibition Act for seven months he month, $100 made about in addition to We cannot his salary. regard minute, or loss of such an emolument in each case as a prospect receipt remote, trifling interest. . . . There are doubtless insignificant mayors [ID who would not $12 allow such a consideration as costs each case to affect it, their but the judgment of due of law in requirement is not satisfied procedure that men of the honor and argument highest self-sacrifice could greatest Every it on without carry danger injustice. procedure would to the man as a possible temptation average offer the burden judge forget to convict the or which proof required defendant, nice, lead him not to hold might the balance clear and true between the State accused, and the (Id., denies the latter due law.” 531-532 pp. 758], added.) L.Ed.2d at italics *23 788 rule announced in was first extended in “possible temptation” Tumey 267, (1972)
Ward v.
Monroeville
The fact that the income of
officers
on the number of
depends
cases
hear and therefore the
they
favor of the
who select them
employers
a
conflict of interest at least as clear as those condemned
presents pecuniary
in
and its
One
on
Tumey
such case that is
progeny.
particularly
point,
because it discusses the manner in which a
officer’s interest
conflict,
future
securing
judicial business creates a
is the decision
of the highest court of West
in State ex rel.
Virginia
v. Poteet
Shrewsbury
(1974)
Aetna a due involved to a five-to-four decision of the process challenge multimillion Alabama Court which sustained a dollar Supreme punitive award an insurance for bad faith refusal to a damages against company pay decision, valid claim. At the time of the Alabama Justice the author Embry, of the awas to a class action Blue Cross majority opinion, party against identical Aetna have posing virtually issues. claimed Justice should Embry himself and that his violated its under the disqualified rights participation due clause. The Court Due “that under the Supreme agreed. Noting no Process Clause ‘can be a in his own case judge judge permitted [or be] ” cases where he (475 has an interest in the outcome. U.S. at try [Citation.]’ Murchison, 133, 833], 822 L.Ed.2d at In re U.S. p. 349 p. quoting supra, [89 942, 946]) L.Ed. the court test set reiterated the forth Ward [99 Monroeville, U.S. supra, 409 L.Ed.2d [34 280-271]: “ interest is sufficient to if the ‘situation is one “which disqualify judge would offer a to the . to . . . lead him . . possible temptation average judge ’ ” nice, (Aetna not to hold the balance clear and Insurance Co. v. true.” Life Lavoie, 475 U.S. at supra, p. p. [89
Justice Raerle
the use of the
be-
rejects
“possible temptation” principle
cause, as he
clearly
“Aetna makes clear that
explains,
temptation’
‘possible
does not include instances where the interest is ‘speculative
contingent.”
ante,
(Lead
Co. v.
fn.
Aetna
Insurance
opn.,
quoting
Life
statement,
Lavoie,
836].) This
475 U.S. at
L.Ed.2d at
Court in State ex rel. McLeod
Supreme
8A similar
the South
result was reached
Carolina
v. Crowe
The blind, significance to which the is is majority its definition of the interest that magnitude will suffice to require judicial disqual- ification Haerle, under the rule. Tumey to According Justice Tumey Ward v. Monroeville mean that the “clearly ‘possible mentioned occurs temptation direct, substantial, when there is a personal, interest’ and that the use of the former does not language nature of the enlarge prohibited ante, (Lead interest.” opn., fn. italics original.) Actually, “direct, reverse is true: an interest is substantial personal, pecuniary” [and ] if it would create a to be “possible to one side. temptation” partial As the Fifth Circuit has explained, Court acknowledged “ Aetna that ‘what degree or kind of interest is sufficient to disqualify judge ’ from “cannot be sitting defined with Aetna precision” Insur [quoting Life Lavoie, ance Co. v. 475 (89 832-833).]” U.S. at L.Ed.2d at pp. In order to diminish the “the Aetna court imprecision, as a ‘reason adopted able formulation’ the whether inquiry the ‘situation is one “which would offer a possible . . temptation . to . . . lead him not to average judge ’ nice, hold the balance clear and true.” this due Applying [Citations.] it, standard to process the case before the Court concluded that although general allegations bias and do not rise to a due viola hostility process tion, the financial justice’s stake whether he was outcome—regardless ‘direct, in fact impartial—was substantial personal, enough pecuniary’ [and] to constitute a violation of the (United Due Process Clause. [Citations.]” (5th 1990) short, States v. Couch 81-82.) Cir. F.2d In Aetna posits “due standard” that amounts to an test: a interest objective particular when it adjudicator an to constitutionally disqualify independent sufficient matter before him or her not to decide the “average
would “tempt” judge” in to the temptation. whether the decisionmaker regardless gave impartially, that this is “due acknowledge unwilling Justice Haerle is merely based he invents a doctrine is but Tumey standard” upon ever the United than has been applied different and much standard higher case and which any guts or other court in relevant Court States Supreme clause. due process III. submit to most reason Justice Haerle refuses “key,” important, Pos- Judge Teachers Union is conclusion Chicago
the rationale law case California pertinent in that cannot squared ner’s opinion (Lead officer. the due of an unbiased hearing regarding process requirement ante, three cases: Justice Haerle bases this conclusion on opn., (1993) 16 City Long Cal.Rptr.2d Beach Binkley Cal.App.4th Bd. den.); Andrews v. Labor Relations (review Agricultural 903] 151]; Los City 623 P.2d and Burrell v. Cal.3d 781 Cal.Rptr. *26 den.). (review These Angeles Cal.Rptr. 427] 209 Cal.App.3d issue before us. no on the constitutional cases have little or bearing Beach, whether a involved the Binkley Long question City of chief, by who the charter could be removed the city’s city city under police cause, in with the discharged without had been manager just compliance of he could be Rights. Public Officers Procedural Bill Because Safety cause, a constitutionally removed the chief was not entitled to without police for the limited in the he was afforded a hearing place; hearing purpose first “ a circumstance surround- him to ‘establish formal record the enabling ” 1809.) (16 and The his termination’ thus save face. at ing Cal.App.4th biased, chief’s was not holding court’s that the police appeal process despite the be understood examiner’s the must hearing appointment city manager, by that, in court because the city manager given light. emphasized charter, the to fair and final under the decisonmaking city right authority the was not the official who makes by tribunal violated impartial permitting matter. In the present initial decision to retain the final in the say disciplinary to hire and case the does not have final decisionmaking authority employer servants; cause and fire civil without discharged civil servant cannot.be review action employer’s by the to obtain of the possesses independent right decision, from that of whose even if it differs officer independent the hearing the The process whereby is final. administratively employer, is selected, in the is or her economic interest proceedings, officer than it constitutionally far significant therefore more consequential if, in terminated would be could Binkley, without employee just Furthermore, cause. Binkley involved no claim of a conflict of pecuniary court, “[tjhere interest. As stated is to indicate by nothing [the had a (Id. or financial in the matter . personal stake . . .” officer] 1810.) City Burrell v. Los Angeles, supra, is also Cal.App.3d very different from this case. In Burrell city employees disciplined by superiors charter, section 112 of the which limited challenged city ability civil service board to reduce the disciplinary penalty by requiring reduction in the recommended the board must be consented to penalty the same official who The court originally imposed discipline. upheld charter based on federal cases provision “that the to a fair concluding right tribunal not violated impartial the official who makes permitting the initial decision to have the final (209 the matter.” disciplinary say Burrell has to do with this case even Cal.App.3d nothing apart from the facts that the that case did not have the employers unilateral ability select the who reviewed their decisions and there was no persons conflict of Unlike interest. section of the Los Char- Angeles ter, which the final section 8.341 of gives employer say, the San Francisco Charter that the officer who provides indepen- exonerate, reviews the action dently appointing authority’s “may suspend that, noted, dismiss accused but [employee]” just finding “[t\he (Italics added.) shall be the constitutional By ignoring final” requirements implicated by type public proceeding contemplated by 8.341, section has in effect San Francisco the majority imposed upon different civil service system Los its adopted Angeles, provides *27 civil servants lesser If this is to be done it can protections. properly Francisco, a vote of the of accomplished only citizens San not through by fiat of this court. Bd.,
Justice Raerle’s view that Andrews v.
Labor Relations
Agricultural
curious,
clause or other constitutional principle; at all on the constitu that bear if very on the basis of statutes peripherally Furthermore, the does case. although opinion tional in this issue presented a statute then of bias was ordinarily required that a actual showing state Andrews court was careful to effect, carve out an exception important in the clearly that exception bias then an requirement prevailed, to the actual observed, course,” are “Of Justice Mosk “there the case. describes present of or likelihood of the existence in which the probability some situations is of a officer required actual bias is so that great disqualification that the judicial even without proof the legal system, the of integrity preserve 5, added.) (Id., is a italics actually party.” biased towards fn. Ohio, as an Tumey then v. U.S. example Justice Mosk cites of financial such a case “in which a because judge disqualified of in stake the outcome.” Andrews in in ways.
Justice Haerle to evade the caveat two endeavors First, here he there is no conflict interest because suggests “financial interest” officer did have an discernible objectively Code of Procedure section a within the Civil dispute meaning party 170.5, (which set (b). of “financial interest” is subdivision But definition which, bias, below)10 a of actual showing forth amounts to margin then Tumey, Andrews court Justice Haerle found citing unnecessary. us sustain even an before the record does not argues case “[i]n implied must be proposition prejudice that bias are never which stand for averments, governing judicial prior statute established clear were “decided under (a)(5)—which had disqualification—Code of Procedure former section subdivision Civil (See Agricultural showing Labor require been in fact. Andrews construed bias however, was, .) replaced Relations . That statute Bd. Cal.3d 792-793 . . 170.1, (a)(6)(C) requirement by section subdivision 1984. The new statute altered ‘ “fundamentally It making disqualification objective represents one. standard legislative inherent difficulties judgment sensitivity question that due to the judicial system, the is not proof importance public in the issue well as the confidence Rather, would man limited to the existence of an actual bias. if a reasonable [or woman] concerning mandated. ‘To ensure judge’s impartiality, disqualification entertain doubts *28 confidence, proceedings worthy of their appear public impartial that the to the and hence ’ ” through objective person.’ eyes the must be viewed the [Citation.]” situation alia, 245-246, omitted, re (Catchpole, citing, inter In supra, Cal.App.4th pp. 36 at fn. 1495, (conc. (1992) of Marriage opn. Cal.App.4th Cal.Rptr.2d Iverson 11 1505 [15 70] of Moore, (1985) J.), Superior Court 170 quoting Workers America v. United Farm of 97, 4], den.) Cal.App.3d Cal.Rptr. 104-105 review [216 10I.e., legal or party, in a or a “ownership percent legal equitable of more than 1 or interest party market thousand five hundred equitable interest in a of a fair value in excess of one director, ($1500), affairs relationship participant or other active the dollars or advisor 170.5, (Code, (b).) party of a . . .” Civ. Proc. subd. . § 794 If, earlier, of bias.’ as noted had how shown
‘appearance many decided, Officer Wharton had how of those were for the many cases Hearing were in favor San Francisco and how of that em- Airport, many rulings be able to of bias.” an objective person might perceive appearance ployer, ante, believe, (Lead at Justice Haerle in other opn., p. appears words, in the of a that there is no bias absence of appearance showing view hard with the law it with actual bias. This is as is square logic. if
Andrews would have no
to this case even the
had
Legislature
application
discussion, ante,
(see
9),
at
it does not
not rendered it obsolete
fn.
because
(or
or state
address the constitutional
at issue here
federal
question
the
Court has left no doubt that it is
constitutional
question).11
Supreme
counts,
actual bias can be shown.
bias that
whether
appearance
regardless
182,
Jerrico,
(1979)
As stated in
v.
Inc.
Supreme Court in Andrews construing “the state Constitution’s due (Id., 582), wrong. The simply is impartial fair and administrative decisionmaker” (or federal) Andrews nor even utters the opinion, which never mentions the state Constitution very makes no such claim. While I believe Burrell respect in this process,” words “due case, in Burrell and that Andrews has no present opinion misleading, application to the out in Andrews. Thus Burrell states although acknowledges exception spelled least [by disciplinary ongoing disciplinary proceedings employer whose “mere involvement are not, se, process principles^] principles per decision is at does violate due [t]hose issue] violated, are demon conversely, part proceedings if who take in the the official or officials least, strongly if, personal or interest in the circumstances such as strably biased financial {Ibid., added.) suggest impartiality." The Burrell opinion therefore does a lack of italics would take suggest were similar to those here the court if the facts of that case position adopted by Justice Haerle. *29 of the facts entertain might reasonably “a aware though person Even able to the officer in this would be be impartial”— that [hearing case] doubt set forth in the Code disqualification is the grounds which among Proc., 170.1, not a (a)(6)(C))—this is (Code Procedure Civ. subd. of Civil § statute, offic- that because case under conventional disqualification least would be at the all selected to prescribed process ers typically pursuant can in of those who hire and them pay to doubts favor resolve tempted other Code of Procedure nor in future. Neither the Civil do so the again the sort of due systemic problem presented state statute contemplates process clause due It the of embedded in the concept justice process in this case. and other civil servants Amendment that protects of the Fourteenth appellant Francisco. in San
IV. but, him, unlike be- Justice Phelan concurs Justice Haerle’s opinion waived we that conflict of interest has been should lieves pecuniary it the issue was not raised below. not address because adequately true, out, did the trial Phelan not in It is as Justice that points appellant economic incentive for court much as he could have the emphasize who them. The reason officers to favor the select pay employers Court did not in Chicago he did not do was the same reason so of it on the conflict pecuniary Teachers Union think comment necessary case; that an the .mere fact interest out the Seventh Circuit spelled by was unilaterally interested was select decisionmaker party permitted of a due violation. The economic interest sufficient show officer here is simply Teachers and the hearing arbitrator Union Chicago Moreover, the remedy appellant an exacerbation of this threshold problem. consent, below, without his that no officer be sought employed including would have solved all the constitutional problems, pecuniary interest, consent. would waiving conflict which “the court found that method Rejecting request, superior due notions of did not violate fundamental officer was selected (1986) 475 U.S. Hudson Chicago articulated Teachers Union v. erroneous, I have This ruling S.Ct. 1066].” said, even conflict interest appellant without the showing more have made. could clearly case in this waiver rule is
Justice Phelan asserts appropriate interest financial conflict alleged “because factual issues related to do not know in the court” and “we simply were never trial developed ante, (Conc. interest.” opn., financial conflict of extent Wharton’s alleged *30 796 therefore, effect, 778.) He is in Justice Haerle’s erroneous p. adopting
view that a of actual bias is showing necessary. all we know. The San
The record tells us need to Francisco undisputed state that the “shall be a hearing civil service rules conducted (Rule 6); officer under contract to the officer” that the appointing appointing or select a officer from authority, may virtually any public employer, officers; or that such that organization supplies employee may private choice on the basis of a of actual showing only challenge employer’s bias, but such a to an he would challenge may employee expose expense bear, that, case, in an may reject not otherwise any employer challenge. employee’s free, officers do not their services for
As we must assume hearing provide civil are in the manner the charter and and that they paid prescribed by earns, rules, other infor- service amount or any hearing precise be or her conflict of interest need not mation on the extent of his bearing that out in “. . . it is clear Tumey, very shown. As Chief Justice Taft pointed officer, in the or interest slightest any quasi-judicial, pecuniary decide,” renders his or her of the matter which he was to resolving subject Ohio, U.S. at (Tumey “decision voidable. [Citations.]” 755], law the added.) “There was at the common L.Ed.2d at italics [71 interest, however over the existence of sensitivity] greatest (Id., at p. small or in infinitesimal, justices peace.” Furthermore, 755], actual of a fee added.) it was not the receipt italics but the mere Tumey, “prospect created the due process problem 758]) (Id., L.Ed.2d at p. emolument” at p. or loss such an receipt man as a judge “a to the temptation average because it created possible to hold the lead him not might burden of ... or forget proof added) nice, (Ibid., italics clear and true” between the balance parties. $12 fee “as a court was therefore to treat possibility indisposed minute, remote, (Ibid.) interest.” trifling insignificant short, Wharton is much Officer paid
In it is not how Hearing important services, those who ruled for or against or whether he has in the past have him, in the past of his income may or what percentage employ pay cases civil service as a officer to adjudicate derived from selection such as this of information and the absence from the record under Rule of the “average” the interest What matters is whether does matter. to the be subject Rule 6 would officer in cases under arising reaffirmed by Tumey described repeatedly “possible temptation” because of does not arise Tumey, Court. As temptation was the result Wharton “but Officer Hearing anything may unique *31 U.S. at (273 law and the ordinance.” normal of the operation of the in increasing can a officer’s interest Nor be considered a and income reasonably future business or her interest, knows all this court it Accordingly, claim. colleagues as my “slight” the merits this case. adjudicate to know to needs appropriately reasons, I would the judgment. reverse For foregoing Court denied May for review the was petition Appellant’s Mosk, J., should be opinion petition granted. 1996. notes decisions, those cited he such as process,” label that issue as one of “due relied on due (Andrews, 793), concurring 28 Cal.3d and Justice Newman’s in his footnote decisionmaking a funda impartiality unquestionably opinion explicitly recognized that Newman, J.).) (conc. (Id. opn. of pp. concept. mental due 798-799