Petition for a Writ of Certiorari — Lipkin v. Department of Alcoholic Beverage Control of California

Supreme Court brief1971

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IN THE E. ROBERT SEAVER, CLERK

SUPREME COURT OF THE UNITED STATES Ks

OCTOBER TERM, 1971

nn. ]6OQ]

MAX LIPKIN, Pétitioner

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

OF THE STATE OF CALIFORNIA,

ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD

OF THE STATE OF CALIFORNIA, Respondents.

SSS SS SS

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

RUDOLPH A, HOFFMAN

Attorney for Petitioner

85 Post Street, Sixth Floor

San Francisco, California 94104

Telephone: (415) 781-6722

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

NO.

MAX LIPKIN, Petitioner

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

OF THE STATE OF CALIFORNIA,

ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD

OF THE STATE OF CALIFORNIA’, Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

RUDOLPH A. HOFFMAN -

Attorney for Petitioner

85 Post Street, Sixth Floor

‘San Francisco, California

Telephone: . (415) 781-6722

94104

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JURISDICTION « Sd e e o e “4 e > ° e e es o e s e e

|. STATUTES INVOLVED ... Pe eRe a ae

CONCLUS ION e . @ e -_ o @ e e e ° | oe e e e e e e e 1 9

INDEX

OPINIONS OF THE DEPARTMENT, THE

APPEALS BOARD, AND THE COURTS WEUON 6 es Se te

QUESTIONS PRESENTED ° ° ° o a @ o @ a @ e se e e e

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STATEMENT e e @ e es e e ° ® e e 7 e e @ e eo o@ e Ld

_ REASONS FOR GRANTING CERTIORARI .. + Oe @ 16 ow ce AO

I. THE STIPULATION OF NOVEMBER 4

RESTED UPON COUNSEL'S GROSS

MISTAKE OF LAW WHICH. PREVENTED

A FULL AND FAIR HEARING AS Pie

REQUIRED BY DUE PROCESS OF LAW... - - 10

II. THE HEARING OFFICER HAD AN

AFFIRMATIVE DUTY TO INTERCEDE

WHEN COUNSEL'S INCOMPETENCE

SHOULD HAVE BEEN OBVIOUS, AND

HIS FAILURE TO DO SO WAS A

DENIAL OF DUE PROCESS OF LAW .... - - 13

III. THE HEARING OFFICER'S FAILURE

TO REOPEN THE HEARING OF

NOVEMBER 4 PREVENTED A FULL

AND FAIR HEARING AS REQUIRED :

BY DUE PROCESS OF LAW... ee © © © e 15

IV. EMPLOYMENT OF THE SUBSTANTIAL

EVIDENCE RULE AS A SHIELD

AGAINST REVIEW OF DEPARTMENT

ACTION IS A DENIAL OF DUE :

PROCESS OF LAW e ° @ se es e @ eo e e e e e 17

APPENDIX: Decision of the Alcoholic

Beverage Control Appeals Board of

the State of California e oe e es se ‘ J 2 7 e @ @ ; @ ec 21

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CITATIONS

Cases:

Boston and Maine R.R. v. United States,

208 F. Supp. 661 (D. Mass. 1962),

affirmed 371 U.S. 26 (1962

Bottiglio v. United States, 431 F. 2d

930 (lst Cir. 1970)

| Boykin v. Alabama, 395 U.S. 238 (1969)

Carlisle v. United States, 352 F. 2d 716

(D.C. Cir. 1965)

Chicago, M., & St. P. R.R. Co. v. Polt,

232 U.S. 165 (1914)

Chosick v. Reilly, 125 Cal. App. 2a 334,

270 P. 2a 547 (1954)

Cooper v. State Board of Equalization,

137 Cal. App. 2d 672, 290 P. 2d 914 (1955)

Cornell v. Reilly, 127 Cal. App. 2d 178,

273 P. 2d 572 (1954)

Covle v. Gardner, 298 F. Supp. 609 (D.

Hawaii 1969)

Dillon v. United States, 307 F. 2d 445

(9th Cir. 1962)

Dodd v. United States, 321 F. 2d 240

(9th Cir. 1963)

Goldberg v. Kelly, 397 U.S. 254 (1970)

Hannah v. Larche, 363 U.S. 420 (1960)

Hobson v. Reilly,

281 P. 877 (1955)

I.c.Cc. v. Louis. & Nash. R.R., 227 U.S.

gs (1913)

132 Cal. App. 2d 275,

Ideal Farms, Inc. v. Benson, 181 F. Supp.

62, 69 (D.N.J. 1960), affirmed 288 F. 2d.

608 (3rd Cir. 1961), cert. den. 372 U.S.

965 (1963)

Ishimatsu_v. Regents of University of

California, 266 Cal. App. 2d 854, 72

Cal. Rptr. 756 (1968)

James v. United States, 388 F. 2d 453

(5th Cir. 1968)

Jenkins v. Gardner, 430 F. 2d 243

(6th Cir. 1970

Jenkins v. United States, 399 F. 2a 981

(D.C. Cir. 1968)

‘17

13, 14

19, 20

9, 10

13, 14

10, 11

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, uel Jer A ee le ee ee ee er | | le | | | ee: |”

Cases:

Johnson v. United States, 380 F. 2d 810

(LOth Cir. 1967)

Kruchter v. Eyman, 406 F. 2d 304 (9th

Cir. 1969)

MacKenna v. Ellis, 280 F. 2d 592 (5th

Cir. 1960)

McCarthy v. United States, 394 U.S. 459 (1969)

Morgan v. United States, 298 U.S. 468 (1936)

Mundell v. Dept. Alcoholic Beverage

Control, 211 Cal. App. 2d 231, 27 Cal.

Rptr. 62 (1962)

The New England Divisions Case, 261 U.8.

184 (1923)

Poe v. United States, 233 F. Supp. 173

(A.D.C. 1964), affirmed 352 F. 2d 639

(D.C. Cir. 1965)

Reimel v. Alcoholic Beverage Control

Appeals Board, 252 Cal. App. 2d 520,

60 Cal. Rptr. 641 (1967)

Sniadach v. Family Finance Corp. of Bay

View, 395 U.S. 337 (1969)

Stanley v. United States, 239 F. 2d 765

(9th Cir. 1957)

Stewart v. Cohn, 309 F. Supp. 949 (E.D.

N.Y. 1970)

United States v. Mariett nie. Co., Inc.,

268 F. Supp. 176 (S.D. W.Va. 1967)

United States ex rel. Maselli v. Reincke,

-“383 F. 2d 129 (2nd Cir. 1967)

Washington v. United States, 297 F. 2d 342

(9th Cir. 1962), cert. den., 370 U.S. 949 (1962)

Wisconsin v. Constantineau, U.S. :

7a 8. Ce. SOT CLF)

Statutes:

Admin. Code, Title IV, Rule 57.5

Admin. Code, Title IV, Rule 57.6

Admin. Code, Title IV, Rule 66

Admin. Code, Title IV, Rule 143

B.& P. Code $24200

iii

13,

2, 6, 7

1} Statutes: Page

2]/ B.& P. Code 824200.5(b) y ae Pee

3} B.& P. Code 824300 9

* 4] B.& P. Code 825657 253

Se: Obl; Comet... Art. XX, 822 25 4 Te

6], c.c.P. $1094.5{(c) 18

7} Gov. Code $811500-11528 9

8]| Gov. Code 811506 i

9] Gov. Code 811513 | | 9

10} Pen. Code 8303(a) ee ee

11} 28 U.S.c. 81257 (3) 3

12 U.S. Const., 14 “mend. a, 9

14 Miscellaneous:

15 The Alcoholic Beverage Control Appeals

} Board of the State of California, |

16 Decision, December 30, 1970 . 12,233,235 ,i38 |

17 Department's Brief, October 6, 1970 11 |

18 Memorandum of Points and Authorities in

Opposition to Petition for Hearing,

19]| March 2, 1971 11

20 Memorandum In Support of Dismissal of

Accusation, November 17, 1969 ll

23]

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

NO.

MAX LIPKIN, Petitioner

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

OF THE STATE OF CALIFORNIA,

ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD

OF THE STATE OF CALIFORNIA, Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

Petitioner, Max Lipkin, prays that a Writ of

Certiorari issue to review the order of the Alcoholic

Beverage Control Appeals Board of the State of California

hereinafter, Appeals Board , entered in the above-entitled

case (Appeals Board No. 54266) on December 30, 1970, and

regarding which a Petition for Writ of Review was denied by

the Court of Appeal of the State of California, First

Appellate District (Civ. No. 29375) on February 3, 1971,

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and regarding which a Petition for Hearing was denied by

the Supreme Court of the State of California (Civ. No.

29375) on March 9, 1971.

OPINIONS OF THE DEPARTMENT, THE APPEALS

BOARD, AND THE COURTS BELOW

This case involves an administrative action

revoking Petitioner's on-sale general license issued by the

Respondent Department of Alcoholic Beverage Control of the

State of California [hereinafter, Department] - The action

was initiated by an accusation filed by Respondent Department

on May 22, 1969. Petitioner requested a hearing as provided

by California Gov. Code 8lli. [Hereinafter, unless

specified otherwise, all statutory sections refer to the

applicable codes of the State of california]. At the hearing

of November 4, 1969, before the Department, Respondent

Department sought revocation of Petitioner's license on

grounds that the continuance of the license would be contrary

to the public welfare and pitike eked the meaning of

Article xXx, 822 of the State Constitution. In support of

these grounds, the Department, in two counts, alleged viola-

tions of B.& P. Code §82420.5(b), 25657, Pen. Code 8§303(a),

and Admin. Code Title IV, Rule 143. On stipulated facts,

the Department ordered revocation of Petitioner's license

(Department File No. 54266, Reg. 8274) on April 30, 1970.

Petitioner appealed from the order revoking his

on-sale general license. On December 30, 1970, the Appeals

Board sustained the Department's order revoking Petitioner's

license (Appeals Board No. 3446). A copy of the decision and

opinion is set forth in the Appendix to this petition, infra.

_ Thereafter Petitioner filed a Petition for Writ of

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Review in the Court of Appeal of the State of California

which was denied (Lipkin v. Dept. Alcoholic Bev. Control,

et al., Civ. No. 29375, Cal. App. 3rd (February 3, 1971))

and a Petition for Hearing in the Supreme Court of the State

of California which was denied (Lipkin v. Dept. Alcoholic

Bev. Control, et al., Civ. No. 29375, Cal. 3rd

(March 9, 1971)).

_ JURISDICTION

The order of Respondent Appeals Board was entered

on December 30, 1970. The Petition for Writ of Review was

denied on February 3, 1971, by the Court of Appeal of the

State of California, First Appellate District. The Petition

for Hearing was denied on March 9, 1971, by the Supreme

Court of the State of California. No rehearing was either

sought or granted. The jurisdiction of this Court to review

the present case on Petition for Certiorari-rests upon 2&

U.S.C. 81257(3).

QUESTIONS PRESENTED

The overriding issue involved herein relates to

Petitioner's right to due process of law in administrative

proceedings under the Fourteenth Amendment to the Federal

Constitution. At stake is the Petitioner's occupation from

Which he derives his livelihood.

Petitioner respectfully asks this Honorable Court

to determine whether certain circumstances, procedures, and

rules surrounding the proceedings below deprived him of due

process of law.

Specifically, the questions presented for review

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by this Court are:

Le Whether a stipulation, entered into because

of counsel's gross mistake of law, prevents a full and fair

hearing as required by due process of law, where, because of

that stipulation, counsel made no cross-examination of an

opposing witness, called no further witnesses, offered no

evidence by way of defense, and made no statement by way of

mitigation?

II. Whether a hearing officer has an affirmative

duty to intercede when counsel's incompetence in throwing

away every defense should be readily apparent and whether

the hearing officer's failure to so intercede is a denial

of due process of law?

III. Whether a hearing officer's failure to reopen

a hearing during which a party had no opportunity to cross-

examine an opposing witness, to calle further witnesses, to

offer evidence in his defense, or to make a statement by

way of mitigation, prevents a full and fair hearing as

required by due process of law?

IV. Whether employment of the substantial evidence

rule as a shield against review of administrative action

works a denial of due process of law? °

STATUTES INVOLVED

1. California Constitution, Article xx, $22,

provides, in relevant part:

"The department shall have the power, in its

discretion, to deny, suspend or revoke any

specific alcoholic beverages license if it

shall determine for good cause that the...

continuance of such license would be con-

trary to public welfare cr morals, or that

a person...holding a license has violated

any law prohibiting conduct involving

moral turpitude....

When any person aggrieved thereby appeals

from a decision of the department...revok- |

ing any license for the...sale of alcoholic

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beverages, the board shall review the

decision....

In such cases, the board shall not

receive evidence in addition to that

considered by the department. Review

by the board of a decision of the depart-

ment shall be limited to the questions

whether the department has proceeded

without or in excess of its jurisdiction,

whether the department has proceeded in

the manner required by law, whether the

decision is supported by the findings,

and whether the findings are supported

by substantial evidence in the light of

the whole record.... Orders of the

board shall be subject to judicial review

upon petition of the director or any

party aggrieved by such order."

2. Business and Professions Code 824200 provides,

in relevant part:

“The following are the grounds which

constitute a basis for the suspension

of the revocation of licenses:

(a) When the continuance of a license

would be contrary to public welfare or

morals....

(bo) ...the violation or the causing or

the permitting of a violation by a

licensee... jof] any rules of the board...

or any rules of the department...or any

other penal provisions of law of this

State prohibiting or regulating the sale,

exposing for sale, use, possession, giving

away...of alcoholic beverages or intoxi-

cating liquors."

3. Business and Professions Code 824200.5 (b)

provides that the Department shall revoke

a license:

"If the licensee has employed or permitted

any persons to solicit or encourage others,

directly or indirectly, to buy them drinks

in the licensed premises under any commis-

sion, percentage, salary, or other profit-

sharing plan, scheme, or conspiracy."

4. Business and Professions Code 825657 provides

it to be unlawful:

"(a) For any person to employ, upon any

licensed on-sale premises, any hostess

or entertainer for the purpose of procur-

ing or encouraging the purchase or sale of

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alcoholic beverages, or to pay any such

hostess or entertainer a percentage or

commission on the sale of alcoholic

beverages for procuring or encouraging

the purchase: or sale of alcoholic.

beverages on such premises.

(b) In any place of business where

alcoholic beverages are sold to be con-

sumed upon the premises, to employ or

knowingly permit anyone to loiter in or

about said premises for the purpose of

begging or soliciting any patron or

customer of, or visitor in, such premises

to purchase any alcoholic beverages for

the one begging or soliciting."

5. Penal Code 8303a provides:

"It shall be unlawful, in any place of

business where alcoholic beverages are

sold to be consumed upon the premises,

for any person to loiter in or about

said premises for the purpose of begging

or soliciting any patron or customer of,

or visitor in, such premises to purchase

any alcoholic beverage for the one beg-

ging or soliciting."

6. Admin. Code, Title IV, Rule 143 provides:

"No on-sale retail licensee shall permit

any female employee of such licensee to

solicit, in or upon the licensed premises,

the purchase or sale of any alcoholic

beverage, any part of which is for, or

intended for, the consumption or use of

such female employee, or to permit any

female employee of such licensee to

accept, in or upon the licensed premises,

any alcoholic beverage which has been

purchased or sold there, any part of

which beverage is for, or intended for,

the consumption or use of any female

employee."

STATEMENT

This case involves an administrative action

revoking Petitioner's on-sale general license issued by the

Department. The action was initiated when the Department,

On May 22, 1969, caused an accusation to issue against

Petitioner stating facts upon which it sought suspension or

revocation of Petitioner's license pursuant to the

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provisions of California Constitution, Art. XxX, 322; B.& P.

Code 8824200(a) (b), 24200.5(b), 25657; Pen. Code §303a; and

Admin. Code, Title IV, Rule 143 (Hearing Transcript, pages

1-5, hereinafter referred to as H.T. 1-5). Petitioner sub-

sequently filed his notice of defense and the matter was set

for hearing on November 4, 1969.

The hearing was held.as scheduled on November 4

before a hearing officer of the Office of Administrative

Procedure. Petitioner was represented by his counsel, Mr.

R. Jay Engel. At the hearing the Department called one

Witness, Mr. William F. Moss, a special investigator employed

by the Department. (H.T. 11). Under direct examination,

Investigator Moss testified that he and another investigator

had visited Petitioner's premises on several occasions during

which time they had been requested by several female employees

to purchase alcoholic beverages for ‘the employees' consumption.

(H.T. 11-36).

Following the conclusion of the Department's

direct examination, and prior to any cross-examination, Mr.

Engel, Petitioner's counsel, entered into a stipulation with

counsel for the Department regarding the receipt of certain

evidence. (H.T. 36-39). Mr. Engel stipulated that in each

count of the accusation the beverage alleged was in fact an

alcoholic beverage. (H.T. 37). Mr. Engel further stipulated

that all of the remaining factual matters stated in the |

accusation would be supported by the testimony of Investi-

gator Moss and by the Report of Investigations offered by

the Department. (H.T. 38-39). The Department thereupon

rested. (H.T. 40).

Mr. Engel did not cross-examine the witness, called

no further witnesses, offered no evidence on behalf of

Petitioner, and made no statement by way of mitigation.

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(H.T. 40-41). He apparently intended to argue that as a

matter of law the Department had not sustained its burden

of presenting a prima facie case. For this reason he

allowed the matter to stand upon the submission of his

Memorandum in Support of Dismissal of Accusation (H.T. 40)

which was thereafter filed with the hearing officer on

November 18, 1969.

There is little doubt that under California law

the facts to which Mr. Engel stipulated will support a find-

ing of at least one alleged violation, any of which would

support a revocation decision. It seems obvious that Mr.

Engel labored under a gross mistake of law fundamental to

Petitioner's defense and that by resting upon the stipula-

tion thew away Petitioner's entire defense.

Petitioner's testimony (H.T. 47-51) clearly dis-

closed his lack of knowledge of the “legal effect of resting

his case upon the stipulation. He had placed the entire

defense in the hands of Mr. Engel, whose incompetence he

could not be expected to have discovered until it was too

late.

On November 10, 1969, Petitioner discharged Mr.

_Engel and engaged Mr. Rudolph A. Hoffman to represent him.

(H.T. 42). Mr. Hoffman petitioned the hearing officer to

reopen the matter and to set aside the stipulation entered

into by Mr. Engel so that a full hearing on the merits of

the case would be possible (H.T. 42). on December 4, 1969,

the hearing officer denied this motion to reopen the hearing.

It seems manifestly unfair to permit a hearing

officer to sit idly Hy. wha watch counsel, whose incompetence

must have been apparent, throw away Petitioner's entire

defense. The hearing officer must have known that the

stipulated evidence was sufficient to establish an alleged

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violation giving grounds to revoke Petitioner's license and

that, because of.the substantial evidence rule, his decision

could be affirmed on appeal. The employment of such a pro-

cedure to deny a full hearing on the merits of the case

seems fundamentally unfair. This Court has recognized that

".eeit is procedure that marks much of the difference be-

tween rule by law and rule by fiat." Wisconsin v.

Constantineau, U.S. » 9L 8S. Ct..507,.. 508: (1972)... the

procedure employed herein seems more akin to rule by admini-

strative fiat than to rule by law. It would seem unwise to

allow such a procedure to become established precedent.

Today, administrative rather than judicial

proceedings increasingly are employed to provide the forum

in which the status of valuable rights are determined. In

California, Gov. Code 8811500-11528 set forth the procedure

to be used in the administrative adjudication of contested

claims. Where, as here, the adjudication concerns the

revocation of a license, the licensee is entitled to a

hearing. B.& P. Code §24300. At the hearing, the licensee

is entitled to present evidence, and is further entitled to

call and examine witnesses, introduce exhibits, cross-

examine opposing witnesses, impeach witnesses, and rebut the

“

—

evidence against him. Gov. Code 811513. Further, even if

the licensee does not file a notice of defense, he may file

a statement by way of mitigation. Gov. Code §11506.

The obvious intent of these code provisions,

especially where a business license may be revoked, is to

inure to the parties a full and fair opportunity to present

facts before an impartial arbiter, i.e., to provide a full

and fair hearing as required by the due process clause of

the Fourteenth Amendment to the Federal Constitution. See,

Ideal Farms, Tnc. v. Benson, 181 F. Supp. 62, 69 (D.N.J. 1960),

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affirmed 288 F. 2d 608 (3rd Cir. 1961), cert. den. 372 U.S.

965 (1963). Petitioner respectfully urges that to date he

has received neither a- full nor a fair hearing of the matter

herein involved.

REASONS FOR GRANTING CERTIORARI

I. THE.STIPULATION OF NOVEMBER 4 RESTED UPON COUNSEL'S

GROSS MiSTAKE OF LAW WHICH PREVENTED A FULL AND —

FAIR HEARING AS REQUIRED BY DUE PROCESS OF LAW.

The stipulation which was entered into by Mr.”

Engel, Petitioner's counsel, at the hearing of November 4,

1969 (H.T. 37-39), clearly was predicated on counsel's gross

misunderstanding of applicable California law. Where

counsel's conduct is so incompetent as to make a farce of a

hearing administrative action should not be permitted to

stand on the results of that hearing. Dodd v. United States,

321 F. 2d 240, 243 (9th Cir. 1963); Jenkins v. United States,

399 F. 2d 981, 982 (D.C. Cir. 1968); Carlisle v. United States,

352 F. 2d 716 (D.C. Cir. 1965); Dillon v. United States,

307 F. 2d 445, 449 (9th Cir. 1962). |

The record, as a whole, clearly shows that Mr.

Engel mistakenly believed California law to require at least

Petitioner's scienter as a necessary element of the alleged

violations. Based on his gross mistake of law, Mr. Engel,

after the Department had called one witness (H.T. 11-36)

entered into a stipulation with regard to the receipt of

certain evidence (H.T. 36-39). The Department thereupon

rested. (H.T. 40). Mr. Engel did not cross-examine the

witness, called no further witnesses, offered no evidence in

Petitioner's defense, and made no statement by way of

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mitigation. (H.T. 40-41). Obviously, Mr. Engel, because of

his gross mistake of law, labored under the incorrect belief

that the Department, as a matter of law, had not sustained

its burden of presenting a prima facie case. See, Memorandum

In Support of Dismissal of Accusation, November 17, 1969.

This much, Respondents concede. See, Department's

Brief at 2, 1. 13, October 6, 1970; The Alcoholic Beverages

Control Appeals Board of the State of California, Decision at

9, December 30, 1970; Memorandum of Points and Authorities in

Opposition to Petition for Hearing at 2, March 2, 1971.

".o.[z]t is basic to due process that an accused

person have a fair opportunity to tell his story ina fair

trial." MacKenna v. Ellis, 280 F. 2d 592, 595 (5th Cir. 1960).

In the instant case, because of his attorney's gross mistake

of law, Petitioner had no opportunity to present his story at

a full hearing as required by due prdcess of law. Poe v.

United States, 233 F. Supp. 173 (A.D.cC. 1964), affirmed, 352

F. 2d 639 (D.C. Cir. 1965). Petitioner was precluded fron

presenting any defense, a fundamental right, because of his

counsel's incompetence,

Petitioner's testimony (H.T. 47-51) clearly

disclosed his lack of knowledge of the effect of the stipula-

tion into which his attorney had entered. Petitioner had

placed the entire defense in the hands of Mr. Engel. There

was no explanation by Mr. Engel of the legal effect of rest-

ing upon that stipulation. (H.T. 47-48). Neither was there

explanation offered by the Department's counsel (H.T. 48), nor

by the hearing officer (H.T. 48). See, Jenkins v. United

States, supra.

Petitioner does not argue denial of due process of

law vVecause of some mere negligence on the part of counsel.

cf. Bottiglio v. United States, 431 F. 2d 930 (lst Cir. 1970)

(no denial of que process because of counsel's mere failure

to make a timely motion) ; Stanley v. uniteqd States, 239 RF,

2d 765 (9th Cir. i957) (no denial of due process because of

counsel's mere failure or refusal to make certain objections.)

Nor does Petitioner argue a denial of que process of law

merely because counsel might have more effectively taken a

different approach. See, Kruchten Vv. Eyman, 406 F. 24 304,

312 (9th Cir. 1969); Johnson y. United States, 3g0 F. 2d 810

812 (10th cir. 1967). See also, Washington yv. United States,

297 F. 2a 342 (9th Cir. 1962), cert. den., 370 U.S. 949 (1962).

fn short, Petitioner does not argue mere error in judgment

on the part of counsel. Rather, Petitioner respectfully

urges that he was precluded from receiving a full ana fair

hearing by the gross incompetence of counsel in not under-

standing even the fundamental law basic to his case. Peti-

fundamental rights inherent to a full and fair hearing are

to be thrown away because of counsel's incompetence,

Even though many of the Principles herein were

forinulated first with regard to criminal trials, they seem

no less persuasive here where Petitioner has received, in

effect, an economic death sentence without having had a full

hearing on the merits. See, Admin. Code, Title IV, Rule 57.6

(states Department Policy not to allow a person to perform

any of the activities ascribed to managership in Rule .

id., who does not possess the qualifications of a holder of

an on-sale license) ; Id., Rule 66 ("No license shall be

issued for premises... .at which a license has been revoked,

for reasons pertaining -to the premises, unless one year has

elapsed from the date the order becomes finals. a8}. i aa

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bar Petitioner from this entire field of employment.

A i THE HEARING OFFICER HAD AN AFFIRMATIVE DUTY TO

INTERCEDE WHEN COUNSEL'S INCOMPETENCE SHOULD

HAVE BEEN OBVIOUS, AND HIS FAILURE TO DO SO

WAS A DENIAL OF DUE PROCESS OF LAW.

Currently, there is a rule developing in the lower

Federal Courts that the hearing examiner in an administrative

proceeding has a duty to act not as a mere umpire, but

affirmatively, to make certain that all relevant facts are

developed. Jenkins v. Gardner, 430 F. 2d 243, 290-291 (6th

Cir. 1970) (dissenting opinion); Stewart v. Cohn, 309 F.

Supp. 949, 956 (E.D. N.Y. 1970); Coyle v. Gardner, 298 F.

Supp. 609, 611-615 (D. Hawaii 1969).

In its opinion, the Appeals Board below reasoned

that Petitioner should have no relief "...from the not un-

common stipulations entered into by his counsel at the

department hearing." The Alcoholic Beverages Control Apreals

Board of the State of California, Decision at 9-10, December

30, 1970. However, while it may not be uncommon to stipulate

to certain matters during, an administrative proceeding, it

would seem a rather uncommon practice to file a notice of

defense, enter into a hearing, and then stipulate away that

entire defense for which the hearing was called in the first

place. Rather, it seems more reasonable that counsel rested

upon the stipulation, thus foreclosing any possibility of a

full and fair hearing on the merits, because of his incom-

petence. Petitioner respectfully requests a determination

by this Court of whether a hearing officer, who must be

assumed to be familiar “with the applicable law, may sit idly

by where it would be obvious to anyone familiar with the

applicable law that counsel, because of his gross incompetence,

13.

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is throwing away the entire Si danea:

To state the matter another way, it is obvious

that Petitioner did not intend to plead "guilty" to the

accusation. Rather, he filed a notice of defense and

requested a full hearing. However, the stipulation entered

into by counsel had the effect of an admission to elements

sufficient to sustain the administrative action, i.e.,

revocation. Thus, the effect was to enter a plea of "guilty"

to the accusation, the very thing Petitioner had no intention

of doing.

Before a plea of guilty can be valid, an accused

must be apprised of its consequences. James v. United States,

388 F. 2a 453, 456 (5th Cir. 1968). He must know that by his

plea he is waiving fundamental rights. Boykin v. Alabama,

395 U.S. 238 (1969). The reasoning that an accused must

possess an understanding of the law ‘in relation to the facts

is persuasive. See, McCarthy v. United States, 394 U.S. 459

(1969). In the present case, Petitioner's testimony (H.T.

47-51) clearly disclosed his lack of knowledge of the effects

of the stipulation entered into by his attorney. Petitioner,

therefore, respectfully asks this Court te determine whether

a hearing officer has an affirmative duty to inquire into

Petitioner's knowledge where, as here, upon revocation he is

thereafter precluded from his occupation from which he derives

his livelihood. |

Even though the currently evolving rule in the

Jenkins, Stewart, and Coyle cases, supra, was formulated in a

context where a party appeared without counsel at an admini-

strative hearing, it would seem no less applicable here where

Petitioner was represented by counsel whose incompetence must

have been apparent to the hearing officer. In fact, the rule

may have even greater applicability since a party can be

14.

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expected to rely on counsel's competence. In Petitioner's

words, "my attorney was my attorney, and I felt any decisions

he made was all right with me." (H.T. 50:22-23).

_ The fact that no objection was made by Petitioner

at the time of the stipulation (The Alcoholic Beverages

Control Appeals Board of the State of California, Decision

at 10) should have no effect on the duty of the hearing

officer:

"Tt is no answer to presume that an accused

defendant acquiesces in the errors of his

retained counsel unless he notifies the

trial court that he is not acquiescing

therein; the average defendant would be

unlikely to discover his lawyer's inade-

quacies until it is too late to notify

the court. United States ex rel. Maselli

v. Reinche, 383 F. 2d 129, 133 (2nd Cir.

1967) ."

Iiif. THE HEARING OFFICER'S FAILURE TO REOPEN THE

HEARING OF NOVEMBER 4 PREVENTED A FULL AND

FAIR HEARING AS REQUIRED BY DUE PROCESS OF LAW.

Petitioner's new counsel, Mr. Hoffman (H.T. 42),

moved to reopen the November 4 hearing (H.T. 42-59) since

the result of prior counsel resting on the stipulation of

November 4 had been to foreclose any defense of the entire

case. Petitioner had had no full hearing on the merits.

This motion was denied on December 4, 1969.

Due process of law requires a full and fair

hearing at some time or stage in an administrative proceeding

before a determination can be made final and irrevocable or

before it works a deprivation of life, liberty or property.

United States v. Marietta Mfg. Co., Inc., 268 F. Supp. 176,

181 (S.D. W.Va. 1967).

In an opinion by Mr. Justice Brandeis, this Court

has held: "A full hearing is one in which ample opportunity

is afforded to all parties to make, by evidence and argument,

15.

a showing fairly adequate to establish the propriety or

impropriety, from the Standpoint of justice and law, of the

step asked to be taken." ‘The New England Divisions Case,

261 U.S. 184, 200 (1923); Boston and Maine R.R. v. United

States, 208 F. Supp. 661, 669 (D. Mass. 1962), affirmed 371

U.S. 26 (1962).

The step asked to be taken by the Department is

revocation of Petitioner's business license. However, to

this time, ample opportunity has not been afforded Petitioner

to establish, by evidence and argument, the impropriety of

revocation.

Administrative orders, quasi-judicial in

character, are void if the hearing Which was granted was

inadequate or manifestly unfair. I.C.c. v. Louis. & Nash. R.R.,

227-U.S. 88 (1913). Here, Petitioner, because of the incom-

petence of counsel at the November 4 hearing, had no oppor-

tunity to cross-examine the Department's witness, to call

further witnesses, to offer evidence, or to make a statement

by way of mitigation. (H.T,. 40-41). Petitioner respectfully

asks this Court to determine whether a hearing such as the

one of November 4 is inadequate or manifestly unfair.

Assuming, arguendo, that the Department could prove

the alleged violations at a full and fair hearing in which

Petitioner is afforded his fundamental rights, Petitioner

still has not had ample opportunity to show mitigating

circumstances under applicable state law. Such an opportunity

is basic to a full and fair hearing. "Facts and circumstances

which ought to be considered must not be excluded." Morgan

v. United States, 298 U.S. 468, 480 (1936).

Even by adduming, arguendo, that the Department

could prove the alleged violations, the fact is that in

cases where violations of the sections herein involved have

16.

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"32

been found, revocation of a license, instead of suspension,

has been ordered only where there was reliable evidence that

the licensee knew of the charged violations. See, Chosick v.

Reilly, 125 Cal. App. 2d 334, 270 P. 2d 547 (1954); Cornell v.

Reilly, 127 Cal. App. 2d 178, 273 P. 2d 572 (1954); Hobson v.

Reilly, 132 Cal. App. 2d 275, 281 P. 2d 877 (1955); Cooper v.

State Board of Equalization, 137 Cal. App. 2d 672, 290 P. 2d

914 (1955). cCf., Reimel v. Alcoholic Beverage Control

Appeals Board, 252 Cal. App. 2d 520, 60 Cal. Rptr. 641 (1967).

However, to date, Petitioner still has not had ample oppor-

tunity to show, by way of mitigation, his lack of knowledge.

It readily can be seen, under applicable state law,

that such mitigating circumstances are a very significant

factor, particularly since Petitioner has owned a license

since June 8, 1967, and in the three succeeding years, had

had no Gisciplinary record whatsoever. Mitigating circum-

Stances alone, under state law, could mean the difference

between revocation and mere suspension. Petitioner, there-

fore, respectfully urges this Court to determine whether the

hearing officer's refusal to reopen the November 4 hearing

was manifestly unfair and denied Petitioner ample opportunity

to establish the impropriety of revocation of his license.

IV. EMPLOYMENT OF THE SUBSTANTIAL EVIDENCE RULE

AS A SHIELD AGAINST REVIEW OF DEPARTMENT

ACTION IS A DENIAL oF DUE PROCESS OF LAW.

Review by the Appeals Board of the Department's

revocation order, so far as it is relevant herein, was

limited to two determinations:

1) Whether the order of the Department was

supported by its findings, and

2) Whether the findings of the hearing officer

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were supported by substantial evidence. Cal Const., Art. XX,

$22. Judicial review of the decision of the Appeals Board,

had it been granted, would have been limited to a determina-

tion of whether the order was supported by substantial evidence.

Code of Civil Procedure 81094.5(c); Mundell v. Depart.

Alcoholic Beverage Control, 211 Cal. App. 2d 231, 233, 27 Cal.

Rptr. 62 (1962). See also, Ishimatsu v. Regents of University

of Calitornia, 266 Cal. App. 2a 654, 72 Cal. Eptr.. 756 (1968) .

In its decision, the Appeals Board found "...that

the record contains substantial evidence supportive of the

department's findings and that the findings support the

department's decision." The Alcoholic Beverage Control

Appeals Board of the State of California, Decision at ll,

December 30, 1970. The State appellate courts below denied

a hearing of the matter.

Petitioner does not even suagest that the

substantial evidence rule is per se unconstitutional. In

addition, there is little doubt that under California law,

the facts to which Mr. Engel stipulated at the November 4

hearing will support a finding of at least one alleged

violation, any of which would support a revocation decision.

However, such a revocation-minded finding can be reached

only by dismissing all .other considerations, including the

effects of counsel's gross incompetence, the refusal of the

hearing officer to intercede or to reopen the hearing, as

well as the general equities which lie in the balance. It

seems fundamental to due process of law that rules, conduct,

and procedures which govern administrative action must be

applied in such a way as to secure a just result. A strict

application of the substantial eiddade wie: with a pre-

determined gaze fixed on revocation, should not act as a

shield by which to fend off judicial review.

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",..[t]he requirements of due process frequently

vary with the type of proceeding involved...." Hannah v.

Larche, 363 U.S. 420, 440 (1960). The type of proceeding

herein involves the revocation of Petitioner's business

license to which attach the severe disabilities discussed,

supra. To permit the Appeals Board to employ the substantial

evidence rule to shield its revocation decision against all

other considerations seems unduly revocation-minded. Such a

procedure would seem to offend "the rudiments of fair play."

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168 (1914).

CONCLUSION

Petitioner herein has had his business license

ordered to be revoked. In addition, because of the personal

disabilities which will attach to him if revocation occurs,

he will be, for all practical purposes, thereafter precluded

from his occupation from which he derives his livelihood.

To this day, Petitioner, because of the gross

incompetence of his former attorney, has never had a full

and fair hearing on the merits of his case. He has never

iden provided an opportunity to cross-examine the Department's

witness, to call further witnesses, to offer iit ina te to

make a statement by way of mitigation. It should not be

heard that the hearing officer did not realize the effect of

counsel resting upon his stipulation. Yet the hearing offi-

cer sat idly by to watch counsel's incompetence throw away

the entire defense of the unwary Petitioner. Then on appeal

the substantial evidence rule was thrown up as a shield to

defend the revocation order thus obtained.

"Due process of law requires a balancing

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process. The precise nature of the

interest alleged to be adversely

affected...the manner in which this is

to be done and the reasons for doing it,

the balance of individual hurt and the

justifying public good -- these and such

like are the considerations, avowed or

implicit, that determine the judicial

judgment, when appeal is made to 'due

process.'" Hannah v. Larche, 363 U.S.

420, 487-488 (1960) (Frankfurter, J.,

concurring).

Petitioner herein desires only that he be given

ample opportunity at a full and fair hearing on the merits

of his case to establish the impropriety of revocation of

his business license. It is difficult to conceive of any

substantial reason, in the balance, why the hearing of

November 4 should not be reopened and the stipulation

entered into by counsel be stricken.

To date, Petitioner has had no full and fair

hearing. Revocation of his business” license prior to such

a hearing would be a deprivation of due process of law.

Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337

(1969); Goldberg v. Kelly, 397 U.S. 254 (1970).

For the reasons stated herein, this Honorable

Court should grant the Petition for Writ of Certiorari

sought by Petitioner, Max Lipkin.

DATED: April 12, 1971

Respectfully submitted,

RUDOLPH A. HOFFMAN "

Attorney for Petitioner

20.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.