The opinion
NEWMAN, J., Concurring.
I agree with the retransfer of this proceeding and with Justice Mosk’s conclusion that “the ALO did not err in refusing to disqualify himself.” {Ante, above.) I write separately to propose an analysis that I think might help resolve future cases where recusal of a nonjudicial adjudicator is sought.
By no means is every rule regarding the disqualification of courts and judges a suitable rule for administrative agencies and their adjudicators. (Cf. 2 Davis, Administrative Law Treatise (1st ed. 1958) p. 169 [“Legislative bodies have often created agencies in order to escape supposed biases of the judiciary or in order to obtain administration of a program in accordance with a desired point of view or bias.”]; see also the dis. *797 opn. in Olson v. Cory (1980) 27 Cal.3d 532, 568-569 [ 164 Cal.Rptr. 217 , 609 P.2d 991 ]; Strauss, Disqualifications of Decisional Officials in Rulemaking (1980) 80 Colum.L.Rev. 990, 1010-1027 (“[These] pages begin with a discussion of disqualification in strictly judicial proceedings and then discuss the practice in agency proceedings resembling trials before moving to consider the possible application of this analysis to policymaking.”). The statutes vary; the Code of Judicial Conduct and Canons of Judicial Ethics differ significantly from many agency regulations; the due process requirements sometimes diverge; and administrative law precedents often deviate from the judicial counterparts. (With Olson v. Cory, supra, 27 Cal.3d at pp. 564-565, e.g., compare Davis, Administrative Law of the Seventies (1976) pp. 326-330 and 3 Davis, Administrative Law Treatise (2d ed. 1980) pp. 42-50.)
The Statute
The initial inquiry in most disputes that involve the legality of an administrative order should be, What has the Legislature prescribed? Here the pertinent statute is section 1145 of the Labor Code, which requires that ALRB employees “perform their duties in an objective and impartial manner without prejudice toward any party.... ” 1
Justice Mosk’s opinion shows, I believe, that no evidence supports a finding that Mr. Menocal did not perform his duties in an objective and impartial manner. The alternate charge, that in fact he was not without prejudice, is answered in the Mosk opinion’s discussion of “bias” and “appearance of bias” (ante, pp. 789, 791, 792, and 795). 2
*798
The Regulation
The second main inquiry in cases like this concerns agency regulations. The parties here have discussed regulation 20230.4, which governed the ALRA proceeding. It was not well-written, 3 but apparently the board felt that modeling it on the pertinent NLRB rule ( 29 C.F.R. § 102.37 ) was justifiable. Respondent’s arguments persuade me that (1) “[s]ince the... ALRB regulation regarding disqualification of ALO’s was identical in substance to the NLRB regulation, it is NLRB case law which provides the applicable precedent for interpretation”; and (2) NLRB case law overwhelmingly supports Mr. Menocal’s ruling here. (See the board’s petition filed here on Mar. 4, 1980, pp. 28-34; also the UFW petition filed the same day, pp. 8-11.)
Due Process and Administrative Commor\ Law
4
Are due process rules inconsistent? Cases cited such as Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242 [ 64 L.Ed.2d 182, 188 , 100 S.Ct. 1610, 1613 ], Peters v. Kiff (1912) 407 U.S. 493 , 501 [ 33 L.Ed.2d 83, 93 , 92 S.Ct. 2163 ], and People v. Ramirez (1979) 25 Cal.3d 260, 268 [ 158 Cal.Rptr. 316 , 599 P.2d 622 ], mention “impartial and disinterested tribunal” and “unprejudiced decision-making.” Obviously those are *799 fundamental rights. They have, though, evolved via practice and theory in ways that by no means buttress petitioners’ contentions here. 5
What about administrative law developments? I am persuaded by my reading of (1) Davis, Administrative Law of the Seventies (1976) pages 326-330, (2) 3 Davis, Administrative Law Treatise (2d ed. 1980), pages 42-50, 6 (3) California Administrative Agency Practice (Cont.Ed.Bar 1970) pages 143-144 and 147-148 and its 1979 supplement, pages 34-36, and (4) 1 Cooper, State Administrative Law (1965) pages 338-348 that Mr. Menocal did not err in refusing to disqualify himself in the ALRA proceeding.
Other “Prejudice?”
The final paragraph of the 20-page Court of Appeal opinion in this case reads: “Although the ALO could not perceive the justification of petitioners’ position, it seems patently clear to us that an attorney, employed by Public Advocates, Inc. in 1975 or 1976, would be perceived as biased against employers generally in disputes against unskilled low paid Spanish-surnamed workers, asserting a community of interests and that he would particularly appear to be biased against an agricultural employer in a dispute with the UFW.”
I believe that the reference therein to “Spanish-surnamed workers” was not appropriate. Also, the court’s accompanying footnote (“In all fairness it must be noted that so far as appears from the record, not only all of petitioners’ employees, but their supervisory personnel, also, were Spanish-surnamed. ”) did not, I think, sufficiently rinse out the possibly insidious intimations. (Cf. the amici brief filed on June 3, 1980, on behalf of the San Francisco Lawyers’ Committee for Urban Affairs, the NAACP and Mexican American Legal Defense and Edu *800 cational funds, the Salinas CRLA Migrant Farmworker Advisory Committee, Public Advocates, Anthony Amsterdam, Jerome Falk, Ephraim Margolin, Miguel Mendez, Charles Meyers, Gary Near, and E. Robert Wallach, pp. 24-29.) My views are outlined briefly in these final paragraphs of the letter to this court filed on March 21, 1980, by California Rural Legal Assistance, Channel Counties Legal Services Association, and the Mexican American Legal Defense and Education Fund:
“[T]here is a very troubling aspect of the Andrews decision below which requires a sensitive, careful and decisive review by this court. Most of the cases cited by the court as ‘politically sensitive’ involve clients or groups with hispanic names. Significantly, some of these cases in no way involve employment related issues. For example, the case of 144 Spanish-Speaking Telephone Subscribers v. Pacific Telephone & Telegraph involved an attempt to obtain bilingual emergency telephone service; and the case of Confederacion de la Raza Unida v. Brown involved a challenge to the 1970 census methodology which undercounted the hispanic population. The only relationship of these cases to Andrews is a common ethnicity among some of the parties. In this context, it is noteworthy that the administrative law officer in Andrews also carries an hispanic surname. The court below said that it seemed clear that Menocal ‘would be perceived as biased against employers generally in disputes against unskilled low paid Spanish-surnamed workers’ (Opinion, pg. 19, (italics added). It is difficult to know from its opinion what the court would have done had Menocal’s name been McGuire or had he been involved representing non-hispanic minority groups exclusively (the record reflects that his firm represents Black[s] and women as well as hispanics).
“It is incumbent upon this Court to ensure that there is no hint of law in this state that an individual cannot serve as a decision-maker in a case involving a class of litigants on one side or the other who share a cultural or racial or sexual identity with the decision-maker or his/her clients. There has never been a hint in California law that a Black person or one who has represented Black people cannot sit as a decision-maker in a case involving Black litigants unrelated to the decision-maker or his/her cases. There has never been any hint in California law that a woman cannot sit as a decision-maker in a case involving women’s rights simply because she is a woman or because she represented women in women’s issues in the past. Nor should there be *801 any such hint. Nonetheless, the Andrews decision below opens these doors. It is incumbent upon this Court to act sensitively and decisively to reclose those doors.”
(Cf. Days, Changing the Heart and Soul of the Judiciary, L. A. Daily Journal (Oct. 2, 1980) at p. 4, col. 3; and for a memento of still unchanged hearts and souls see Sato v. Hall (1923) 191 Cal. 510, 512 [ 217 P. 520 ] (“The judgment . . . shows that the petitioner is a member of a yellow race, and this showing renders the judgment void . . . ”). See too Noonan, Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (1976) p. 60: “[Wythe’s] pupils followed in his path. Jefferson wanted to end the evil of slavery. So did Henry Clay, James Monroe, and John Marshall. Deploring the evil, they [nonetheless] overcame their objections to it as Speaker, President, and Chief Justice . . . and sustained the system. ...”)
The words in section 1145 that I quote postdated the agency action that is challenged here. That they merely codified law already implicit, however, is shown by this excerpt from the Legislative Counsel’s Digest of May 31, 1978: “The Agricultural Labor Relations Act of 1975...does not specifically provide that all employees of the Agricultural Labor Relations Board shall perform their duties in an objective and impartial manner without prejudice toward any party who is subject to the jurisdiction of the board. [H] This bill would amend such act to specifically so provide.”
However, I would have cited the administrative law precedents of which, as is noted below, there are many, rather than judicial precedents.
Regarding an appearance of bias we should not overlook Canon 3C(l)(a) of the Code of Judicial Conduct, which reads: “A judge should disqualify himself in a proceeding in which ... his impartiality might reasonably be questioned, including but not limited to instances where ... he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding----” The California Commentary thereto states: “CCP Section 170, subdivision 5, contains the comparable California statutory disqualification. Because the Code emphasizes thet appearance as well as the fact of propriety, Canon 3C(l)(a) may require more dis *798 qualification than the statute requires." (Italics added.)
Yet so far as I can ascertain, no one suggests that administrative adjudicators are governed by the Code of Judicial Conduct. (Cf. Newman, Two Decades of Administrative Law in California: A Critique (1956) 44 Cal.L.Rev. 190, 195: “The much-touted ‘Code of Ethics for Administrative Officials in California’ [fn. omitted] has been a flop, but it scarcely follows that law reform regarding ethics is not feasible.”) In this case, therefore, we need not address the commentators’ question whether Canon 3C(l)(a) does “require more disqualification than the statute requires.”
E.g., it speaks of the ALO’s withdrawing “on ground of personal bias or disqualification”; and it also mentions “grounds for disqualification.” Does that last phrase include grounds other than “personal bias”?
Arguably also, the objector must state only a prima facie case (“If.. .such affidavit .. .is sufficient on its face”). Yet if the ALO refuses to recuse himself he must write out “the grounds for his ruling.” That seems to imply that he may dispute alleged facts.
I do not agree with Justice Mosk’s conclusion that in regulation 20263, which reflects the board’s revision of its rule, “the substantive standard for disqualification is essentially the same [as in 20230.4].” (Ante, p.788, fn. 1.) I do agree that 20263’s substantive standard appears to have been “taken directly from Code of Civil Procedure section 170, subdivision 5.” (Ibid.) The California Administrative Procedure Act sets parallel but differing requirements. (See Gov. Code, § 11512, subd. (c).)
See Davis, Administrative Common Law and the Vermont Yankee Opinion (1980) Utah L.Rev. 3: “Administrative common law is either common law created by courts about the administrative process, or common law created by agencies through adjudication.”
Cf. Newman, Natural Justice, Due Process and the New International Covenants on Human Rights: Prospectus (1967) Pub. L. 274, 291, footnote 45.
Cf. Davis, Preface for Volume 3 in 3 Administrative Law Treatise (2d ed. 1980) page xviii: “The law is superior to the common belief within the legal profession that one who has a preconceived conviction about law or policy is for that reason disqualified. ... As shown in § 19:2, the law is clear and firm that a preconceived position about law, policy, or legislative facts is not a disqualification.... [H] Belief in ‘neutral and objective’ judges is prevalent, but § 19:3 undertakes the uphill task showing that that belief should be confined to such tasks as appraising evidence and applying previously-existing law and cannot be applied to creation of new law or new policy. Taking a position on a controversial issue is intrinsically unneutral.”