Haas v. County of San Bernardino

BROWN, J., Concurring and Dissenting.

I concur in the majority’s decision to affirm the judgment of the Court of Appeal because in the circumstances of this case the personal selection of the hearing officer by the county’s attorney—who also prosecuted the matter—was sufficient to cause a reasonable person to doubt the adjudicator’s impartiality. (Cf. Code Civ. Proc., § 170.1, subd. (a)(6)(C).) I cannot agree, however, that the present facts warrant the wholesale dismantling of a selection process utilized not only by the county but by local governmental entities throughout the state. (See Gov. Code, § 27721.) While common practice does not ipso facto establish or ensure constitutional validity, I am unpersuaded the rationale of Tumey v. Ohio (1927) 273 U.S. 510 [ 47 S.Ct. 437 , 71 L.Ed. 749 ] and its fee system progeny should straightjacket the analysis here.

In Tumey v. Ohio, supra, 273 U.S. at page 523 [ 47 S.Ct. at page 441 ], the United States Supreme Court found a due process violation where the mayor-adjudicator had a “direct, personal, substantial pecuniary interest in reaching a conclusion against” one of the parties because only upon conviction would costs be imposed on his behalf. (See also State ex rel. Reece v. Gies (1973) 156 W.Va. 729, 737 [ 198 S.E.2d 211, 215-216 ].) In addition, the mayor was “charged with the business of looking after the finances of the village” and thus had an interest in the “pecuniarily successful conduct” of the criminal court over which he presided and which generated substantial village revenue through criminal convictions. (Tumey v. Ohio, supra, 273 U.S. at p. 533 [47 S.Ct. at pp. 444-445].) The Supreme Court has also allowed that a constitutional violation may arise “when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court [by favoring criminal conviction]. This, too, is a ‘situation [as in Tumey] in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, (and) necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.’ [Citation.]” (Ward v. Village of Monroeville (1972) 409 U.S. 57, 60 [ 93 S.Ct. 80, 83 , 34 L.Ed.2d 267 ].)

Invoking the rationale of Tumey and Ward, the court in Brown v. Vance (5th Cir. 1981) 637 F.2d 272, 276 , found a due process violation where “a judge’s bread and butter depend[ed] on the number of cases filed in his *1039 court” thereby creating the temptation “to enhance his income by leaning in the direction of conviction in criminal cases [thus currying favor with police officers who decided where to file such matters] and judgment for the plaintiff in civil cases [thus currying favor with creditors who decided where to file their collection actions].” (See also Doss v. Long (N.D.Ga. 1985) 629 F.Supp. 127, 129 [following Brown, supra, 637 F.2d 272 ]; State ex rel. Shrewsbury v. Poteet (1974) 157 W.Va. 540, 546 [ 202 S.E.2d 628, 631-632 , 72 A.L.R.3d 361 ].)

The majority acknowledges that a disqualifying pecuniary interest must be direct, personal, and substantial, but makes no attempt to realistically apply this standard rather than an overwrought interpretation of the fee system cases. Indeed, it implies that a due process violation would arise from payment of even $10 or $15 (see maj. opn., ante, at pp. 1031-1032), an amount that today would not cover a hearing officer’s parking in many cities. 1

The majority grounds its reliance on the reasoning of Brown v. Vance, supra, 631 F.2d 272, on the possibility the county may in some future proceeding again solicit Abby Hyman’s services as a hearing officer. This pecuniary interest may be less indirect than in Dugan v. Ohio (1928) 277 U.S. 61 [ 48 S.Ct. 439 , 72 L.Ed. 784 ], in which the mayor’s “relationship to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.” (Ward v. Village of Monroeville, supra, 409 U.S. at pp. 60-61 [ 93 S.Ct. at p. 83 ].) Nevertheless, on this record, I find it sufficiently speculative and insubstantial to dispel any due process concerns. (Cf. Gibson v. Berryhill (1973) 411 U.S. 564, 571 [ 93 S.Ct. 1689, 1694 , 36 L.Ed.2d 488 ] [upholding a trial court finding that “a serious question of a personal financial stake in the matter in controversy was raised” where the board adjudicating charges of unprofessional conduct was composed of members who “would fall heir to” the business of those cited if the charges were sustained].)

Hyman was paid a standard hourly rate only for the matter she adjudicated. Unlike the circumstance in Brown, however, her primary employment is elsewhere, and from what we can glean from the record it does not appear she had any reasonable expectation of future employment with the county as a hearing officer. There is no conclusive evidence Green even discussed the *1040 possibility in hiring Hyman for plaintiff’s hearing; until plaintiff raised the issue, she apparently had not considered the question. Thus, these hearings are not her “bread and butter” (Brown v. Vance, supra, 637 F.2d at p. 276 ); and she is not “dependent on [them] for subsistence.” (Id. at p. 281.) Nor is there any evidence she would be “compelled to close [her] office” if the county declined to retain her services for future hearings. (Id. at p. 282.) It also appears from the record that such services would, in any event, be limited to license appeals on massage cases lasting only a few hours each. These cases arise with such infrequency that at oral argument county counsel indicated there had not been another such hearing in the eight years since this one. In other words, with respect to these particular matters and unlike the fee system decisions, the “volume of cases” to which the majority alludes (maj. opn., ante, at p. 1031) is nonexistent. In sum, Hyman could not therefore have had any realistic expectation of future retention. Under these circumstances, the possibility that the average person would be tempted to rule in favor of the county or be led “not to hold the balance nice, clear and true” between the parties (Tumey v. Ohio, supra, 273 U.S. at p. 532 [ 47 S.Ct. at p. 444 ]) is thus remote at best and contingent on factors unrelated to the selection process.

The demands of due process do not require either perfect ignorance or perfect altruism. Under these circumstances, I conclude that, even if “personal,” any pecuniary interest on Hyman’s part was not “direct” or “substantial” within the rationale of Tumey v. Ohio, supra, 273 U.S. at page 523 [ 47 S.Ct. at page 441 ], and its progeny. (See Brown v. Vance, supra, 637 F.2d at pp. 284-285.)

At footnote 22, the majority suggests the county could devise a constitutionally acceptable selection process by precluding future appointment “until after a predetermined period of time long enough to eliminate any temptation to favor the county.” (Maj. opn., ante, at p. 1037, fin. 22.) If even $10 or $15 remuneration is sufficient to compel disqualification, one must wonder how long a period would be necessary to eliminate such a “temptation.”