Impartiality and Due
Process
Reflections on the California Supreme
Court’s Decision in
Morongo Band of Mission Indians v.
State Water Resources Control Board,
45 Cal.4th 731 (2009)
Frank R. Lindh
General Counsel
Public Utilities Commission of the State of California */
October 6, 2009
*/
See disclaimer, p. 2
Conference of California Public Utility
Counsel (CCPUC)
2009 Annual Meeting
Monterey, California
Disclaimer: The views expressed in this presentation are the presenter’s own individual
views, and should not be construed as representing the position of the California Public
Utilities Commission or its Legal Division, or any other agency of the State of California.
Special thanks to Manuela Albuquerque, Esq., former City Attorney, City of Berkeley,
California, who made a presentation about Morongo to the League of California Cities in
May 2009 (and who authored an amicus brief in the Morongo case).
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Procedural Due Process
• U.S. Constitution: Procedural due process
protects liberty and property interests.
Mathews v. Eldridge, 424 U.S. 319 (1976).
– Applies to the States under 14th Amendment.
Morrissey v. Brewer, 408 U.S. 471 (1972).
• California Constitution: Recognizes and
protects a liberty interest in freedom from
“arbitrary adjudicative procedures.” People v.
Ramirez, 25 Cal.3d 260, 268-269 (1979).
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Impartial Adjudicator
• “[A] neutral and unbiased adjudicator is a
fundamental component of a fair
adjudication.” Breakzone Billiards v. City of
Torrance, 81 Cal.App.4th 1205, 1234 (2000).
• People have the right to a tribunal that “meets
standards of impartiality.” “Biased decision
makers are impermissible.” Clark v. City of
Hermosa Beach, 48 Cal.App.4th 1152, 1170 (1996).
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Presumption of Impartiality
• In California (as in federal cases), decision
makers enjoy a presumption of impartiality
(except for pecuniary interest situations).
Breakzone Billiards, supra 81 Cal.App.4th at 1236.
• This presumption can be overcome only by
evidence showing “an unacceptable probability
of actual bias…” Id.
• California has not embraced an “appearance of
bias” standard. Id.
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Separation of Functions:
Advisory vs. Advocacy
• Decision-maker must be advised by lawyer who is
different from lawyer serving as advocate at hearing.
Midstate Theaters, Inc. v. County of Stanislaus, 55 Cal.App.3d
864, 870, 871 (1976).
• Lawyer advising decision-maker must be ethically
walled off from lawyer serving as advocate. Howitt v.
Superior Court, 3 Cal.App.4th 1575 (1992).
• Lawyer advising staff whose decision is being
appealed may not advise decision-maker on appeal.
Nightlife Partners v. City of Beverly Hills, 108 Cal.App.4th 81
(2003).
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Court of Appeal Decision in Quintero
Quintero v. City of Santa Ana, 114 Cal.App.4th 810 (2003)
• In Quintero, the City of Santa Ana was represented by an
assistant city attorney in a hearing before the City’s Personnel
Board in which a city employee was contesting the termination
of his employment.
• The same assistant city attorney also acted as counsel to the
Board in other matters.
• The Court of Appeal found an unacceptable “appearance of
bias and unfairness” and ordered a new hearing.
“For the Board to allow its legal advisor to also act as an advocate
before it creates a substantial risk that the Board’s judgment in the case
before it will be skewed in favor of the prosecution.” 114 Cal.App.4th
at 817.
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Supreme Court Decision in Morongo
Morongo Band of Mission Indians v. State Water Resources Control Board,
45 Cal.4th 731 (2009)
• Facts:
• Morongo Band of Mission Indians was current holder of a license
to divert water.
• In April 2003, the Water Board issued a notice of proposed
revocation of that license.
• Morongo requested a hearing to contest the proposed license
revocation, and Board issued a notice of public hearing, identifying
Staff Counsel Olson as a member of enforcement team prosecuting
case.
• Olson also was serving as advisory counsel for the Board in an
unrelated case.
• Court of Appeal upheld a superior court decision disqualifying
Olson on due process grounds.
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Supreme Court Decision in Morongo
(continued)
Question Presented:
“In an administrative proceeding to revoke a water
license, does it violate the license holder’s
constitutional right to due process of law, as the Court
of Appeal held here, for the agency attorney
prosecuting the matter before the State Water
Resources Control Board to simultaneously serve as
an advisor to that board on an unrelated matter?”
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Supreme Court Decision in Morongo
(continued)
Holding:
• No presumption of bias, absent pecuniary
interest.
• No showing of bias in this case, hence no due
process violation.
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Supreme Court Decision in Morongo
(continued)
• “In construing the constitutional due process right to an
impartial tribunal, we take a more practical and less
pessimistic view of human nature in general and of state
administrative agency adjudicators in particular [than did the
Court of Appeal]. In the absence of financial or other personal
interest, and when rules mandating an agency’s internal
separation of functions and prohibiting ex parte
communications are observed, the presumption of impartiality
can be overcome only by specific evidence demonstrating
actual bias or a particular combination of circumstances
creating an unacceptable risk of bias. ” (45 Cal.4th at 741.)
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Supreme Court Decision in Morongo
(continued)
• Presumption of impartiality can only be rebutted by specific
evidence demonstrating actual bias, or a combination of
circumstances creating an unacceptable risk of bias.
• Absent such rebuttal – provided advisory and advocacy
functions are appropriately separated – “we remain confident
that state administrative agency adjudicators will evaluate
factual and legal arguments on their merits, applying the law
to the evidence in the record to reach fair and reasonable
decisions.”
Morongo, supra, 45 Cal.4th at 740
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Supreme Court Decision in Morongo
(continued)
What is not enough to rebut the presumption of impartiality:
• Contemporaneously serving as advisor to the tribunal in one
case, while prosecuting an unrelated case before the same
tribunal. (Morongo court of appeal decision reversed.)
• Sequentially doing so. (Query: Is Quintero still good law?)
• Having advised the tribunal at some prior time on an unrelated
matter.
• Having had some prior professional or social relationship with
the decision-maker.
Morongo, supra, 45 Cal.4th at 741
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Why Morongo Matters at the
California Public Utilities
Commission
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Advisory vs. Advocacy:
Permutations in CPUC Legal Division
ADVISORY
• Providing legal advice
to Commissioners and
ALJs on matters before
the CPUC
• Representing the CPUC
before other tribunals
(e.g., FERC and FCC)
ADVOCACY
• Representing DRA in
contested cases before
the CPUC
• CPSD attorneys in
investigations and
enforcement cases.
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CPUC Legal Division
Separation of Functions
• CPUC Legal Division appropriately separates
advisory attorneys from advocacy attorneys.
• Legal Division, however, does not separate advisory
from advocacy attorneys by means of the Division’s
organizational structure.
• Morongo decision confirms that Legal Division’s
operations do not pose a due process problem.
• A policy question – but not a legal question – remains
as to whether this organization structure best serves
the public interest.
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CPUC Legal Division
Current Organizational Structure
(October 2009)
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Legal Division Organization
October 2009
Number of attorneys in Section including supervisor)
Cindy Philapil
AGPA
Becky Cunningham
Admin. Asst.
Telco
Helen Mickiewicz
Asst. GC
(7)
FOSS, Travis
GASSER, Laura
THOMAS, Sarah
VO, Hien
WITTEMAN, Chris
YUN, Sindy
Frank R. Lindh
General Counsel
Transportation &
Water
Jason Zeller
Asst. GC
(8)
BERDGE, Patrick
BARRERA, Linda
BONDONNO, Maria
BROWN, Allison
FAIRCHILD, Peter
GRUEN, Darryl
SHEK, Selina
Lionel Wilson
Lead
Deputy GC
Energy
Procurement
Mary McKenzie
Asst. GC
(11)
Margie Lezcano
Support Staff Supervisor
(17)
ALVIAR, Janet
BEAUREGARD, Jeanne
EUSEBIO, Imelda
GONZALEZ, Roscella
GEE, Berlina
HILL, Albert
LARK, Joanne
LUNDY, Charlene
MARCINKOWSKI, Halina
MARINDA, Angie
MUNIZ, Sue
PEREZ, Martha
REDSUN, Rachel
ROJO, Rebecca
SALYER, Nanci
SARMIENTO, Nellie
CLAY, Christopher
DORMAN, Elizabeth
HOOK, Charlyn
LEE, Diana
McQUILLAN, Elizabeth
OBIORA, Noel
PAULL, Karen
POIRIER, Marcel
SALVACION, Lisa-Marie
SHAPSON, Mitchell
Energy
Transmission
Harvey Morris
Asst. GC
(13)
State Appellate
Helen Yee
Asst. GC
(11)
BROMSON, Jonathan
CAGEN, Bob
CHASET, Larry
HEIDEN, Greg
LEE, Cleveland
LIPPI, Kim
MOLDAVSKY, Ed
PELEO, Marion
RASHID, Rashid
STODDARD, Jack
SHER, Nicholas
TUDISCO, Laura
ANGELOPULO, Paul
CASTRO, Stacie
DRYVYNSYDE, Geoff
HOLZSCHUH, Dale
JOHNSON, Catherine
McCRARY, Monica
MILEY, Matt
PARK, Sophia
PRATT, Carrie
YOUNGSMITH, Emy
Advisory
Arocles Aguilar
Asst. GC
(12)
ALLEN, Judi
BONE, Traci
DUMAS, Gretchen
FILCHEV, Linda
GHAFFARIAN, Pouneh
HARRIS, Fred
MULLIGAN, Jack
PERLSTEIN, Joel
REIGER, Jason
SUN, Jonady Hom
VLAHOS, Ourania
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Conclusions
• Due process concerns the fairness and impartiality of
the decisional process.
• Cases like Morongo and Quintero concern a
particular aspect of due process, namely, the roles of
attorneys as advisors vs. attorneys as advocates
before the decisional body.
• Morongo was rightly decided. Being an advisor on
some matters should not automatically disqualify an
attorney from being an advocate before the same
decisional body on other, unrelated matters.
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