Impartiality and Due Process

1. 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

2. Conference of California Public Utility Counsel (CCPUC)2009 Annual MeetingMonterey, 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).

3. 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).

4. 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).

5. 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.

6. 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).

7. Court of Appeal Decision in QuinteroQuinterov. 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.

8. Supreme Court Decision in MorongoMorongo 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.

9. 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?”

10. 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.

11. 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.)

12. 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

13. 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

14. Why Morongo Matters at the California Public Utilities Commission

15. 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. Advisory vs. Advocacy:Permutations in CPUC Legal Division

16. CPUC Legal DivisionSeparation 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.

17. CPUC Legal DivisionCurrent Organizational Structure(October 2009)

18. Telco Helen Mickiewicz Asst. GC (7) Transportation & Water Jason Zeller Asst. GC (8) Energy Procurement Mary McKenzie Asst. GC (11) State Appellate Helen Yee Asst. GC (11) AdvisoryArocles Aguilar Asst. GC (12) Energy Transmission Harvey Morris Asst. GC (13) 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 FOSS, Travis GASSER, Laura THOMAS, Sarah VO, Hien WITTEMAN, Chris YUN, Sindy BERDGE, Patrick BARRERA, Linda BONDONNO, Maria BROWN, Allison FAIRCHILD, Peter GRUEN, Darryl SHEK, Selina CLAY, Christopher DORMAN, Elizabeth HOOK, Charlyn LEE, Diana McQUILLAN, Elizabeth OBIORA, Noel PAULL, Karen POIRIER, Marcel SALVACION, Lisa-Marie SHAPSON, Mitchell 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 Legal Division Organization October 2009 Number of attorneys in Section including supervisor) Frank R. Lindh General Counsel Cindy Philapil AGPA Becky Cunningham Admin. Asst. Lionel Wilson Lead Deputy GC ALLEN, Judi BONE, Traci DUMAS, Gretchen FILCHEV, Linda GHAFFARIAN, Pouneh HARRIS, Fred MULLIGAN, Jack PERLSTEIN, Joel REIGER, Jason SUN, Jonady Hom VLAHOS, Ourania

19. 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.