Legal Alerts

Morongo Band of Mission Indians v. State Water Resource Board, (July 12, 2007, C052177) __ Cal.App.4th __.

On July 12, 2007, the California Third District Court of Appeal issued an important decision concerning due process requirements for an administrative hearing.  The decision relates to a State Water Resource Control Board ("State Board") hearing held to consider the proposed revocation of a water rights license held by the Morongo tribe near Cabazon.  The public agency attorney acting as the prosecutor in the Morongo case was also advising the State Board in a separate proceeding.

The tribe attempted to disqualify the attorney for acting simultaneously as a State Board prosecutor and advisor.  While the State Board hearing officer refused to disqualify the attorney, the trial court granted the tribe's request.  The Court of Appeal then held that a bright-line rule exists where an attorney both advises and prosecutes before the same administrative body.  Administrative bodies include any state or local agency or government that acts as the decision maker in a hearing or appeal.  In these situations, the appearance of bias prevents attorneys from acting in both capacities at the same time.  The court noted the danger that "unconsciously or consciously" the Board would give the prosecuting attorney's arguments greater weight due to her role as the Board's advisor.  (July 12, 2007 Decision, p. 17.)  The court acknowledged that requiring separate prosecutorial and advisory divisions may present budgetary concerns for agencies.  However, the court refused to ignore the risk of bias simply to save resources.

The Court of Appeal also discussed precedent regarding attorneys acting in the dual role of prosecutor and advisor.  In an earlier case, the court had applied a balancing test that considered the specific facts of the situation to decide if an attorney who had previously acted as an advisor to a particular agency could later prosecute a case before the same agency.  The court distinguished the situation where an attorney assumes the advisor and prosecutor roles at entirely separate times.  Attorneys may switch roles over time and courts will evaluate the potential bias arising from these situations on a case-by-case basis.  However, when an attorney acts in both capacities simultaneously before the same administrative agency, even in completely unrelated cases, the risk of bias is so great that disqualification is automatic.  This clear bright-line standard is a new development in this area of the law.

Additionally, the court discussed the scope of its decision.  Unlike past cases, the State Board had conducted the hearing at issue pursuant to the Administrative Procedures Act (APA).  The APA sets forth finalized procedures for certain administrative hearings, and it does not expressly prevent attorneys from serving advisory and prosecutorial roles in unrelated proceedings.  The Board argued that the APA's requirements are the exclusive means to determine if a due process violation has occurred.  Under the Board's theory, no due process violation may occur when an agency complies with the APA.  The court rejected this argument and noted that due process requirements exist independent of the requirements of the APA or other statutes.

Accordingly, agencies and local governments must be cautious that their attorneys do not simultaneously act both in an advisory and prosecutorial capacity.  This prohibition applies any time the agency or local government acts as the decision maker in a hearing or appeal involving adversarial or prosecutorial proceedings.  Allowing different attorneys within the same firm or office to act in both capacities on the same case is acceptable as long as adequate barriers exist to prevent improper communications between or among them.  Attorneys may switch roles for cases occurring at different times as long as the specific facts of the situation do not create a risk of bias.

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For more details regarding the impact of this decision on the acceptable role attorneys may play in an administrative hearing, please contact Best Best & Krieger's Municipal Law Practice Group.

Disclaimer:  BB&K eBulletins are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Seek the advice of an attorney before acting or relying upon any information in this communication.  (c) 2007 Best Best & Krieger LLP