Linney v. Turpen

PHELAN, J.

I concur in the opinion of Justice Haerle rejecting appellant’s claim that he was denied due process because respondent had an “unrestricted choice” in the selection of the hearing officer as well with the discussion of the other issues resolved. I write separately only to stress that the “pecuniary conflict of interest” issue was never (directly or indirectly) raised in the mandamus proceedings before the superior court which we review. Accordingly, I believe that issue has been waived and we should not consider it.

That the pecuniary conflict of interest issue was not presented below is unmistakably clear from the record before us. The second verified petition *778 for writ of administrative mandamus focused entirely on the issue of “unrestricted choice” and the failure to give appellant “an opportunity to participate in the selection of the hearing officer.” Nowhere did appellant allege as a ground for setting aside his suspension that he had been denied due process because Hearing Officer Wharton had a financial conflict of interest since he was “under contract” with respondent. Throughout the lower court proceedings, appellant consistently and only pursued his theme that his due process denial resulted from respondent’s unilateral and unrestrained choice in the selection of the hearing officer. There was simply no claim that it arose from Wharton’s alleged financial incentive to decide his case favorably to respondent.

Appellant’s first assertion of a claim of denial of due process based upon financial conflict of interest appears in his opening brief in this court. Therein he initially mentions, almost parenthetically and in passing, that respondent “was also responsible for paying . . . Wharton’s fees.” Later, he develops the point and adds it to his “unrestricted choice” argument. The failure to raise the financial conflict of interest in the court below precludes our consideration of it on appeal. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-30 [ 21 Cal.Rptr.2d 104 ]; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 1995) 08:229 to 8:240, pp. 8-78 to 8-80.)

Application of the waiver rule is particularly appropriate in this case because factual issues related to the alleged financial conflict of interest were never developed in the trial court. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879 [ 242 Cal.Rptr. 184 ].) On the record before us, we simply do not know the extent of Wharton’s alleged financial conflict of interest. We only know that, under the commission rule, he was “under contract” to respondent. Any financial interest he might have in deciding appellant’s case could be de minimis or it could be of a nature which unquestionably would lead him to favor respondent. Thus, whether there was a financial interest of such a dimension which would rise to the level of a “direct, personal, substantial, pecuniary interest in reaching a conclusion against” appellant (Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, 821-822 [ 89 L.Ed.2d 823, 832-833 , 106 S.Ct. 1580 ]) and constitute a denial of due process, can only be the subject of speculation. We simply do not know its nature or magnitude and can only guess as to its impact, if any.

Presiding Justice Kline’s dissent suggests that the “under contract” provision of rule 6.06 of the San Francisco Civil Service Commission Rules “tells us all we need to know.” (See dis. opn., post, at p. 796.) He would be right if his premise were correct—that is, under Tumey v. Ohio (1927) 273 U.S. *779 510 [ 71 L.Ed. 749 , 47 S.Ct. 437 , 50 A.L.R. 1243 ], even a slight economic incentive to rule a particular way offends due process. However, as Justice Haerle’s opinion notes, the United States Supreme Court has specifically declined “to read Tumey as constitutionalizing any rule that a decision rendered by a judge with ‘the slightest pecuniary interest’ constitutes a violation of the Due Process Clause." (Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at pp. 825-826, fn. 3 [ 89 L.Ed.2d at p. 835 ].) The even more attenuated “possible temptation,” which the dissent claims exists by virtue of the “under contract with the appointing authority” provision, perforce cannot give rise to a denial of due process.

Accordingly, I believe the financial conflict of interest issue has not been preserved for appeal and decline to join in that aspect of the controversy otherwise eloquently addressed by my colleagues.