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C.A. Justices Clash Over What Amounts to Judicial Advocacy
Majority Says Hearing Officer Both Represented DMV’s Position at Hearing and Then Adjudicated Matter; Dissenter Sees No Breach of Obligation, Established in 2022 Opinion, to Keep Those Roles Separate
By a MetNews Staff Writer
Div. Three of the Fourth District’s Court of Appeal has reversed a Superior Court judge’s rejection of a challenge to a decision, reached after an administrative hearing, to yank a driver’s license for one year based on the refusal of the motorist, arrested for drunk driving, to submit to a chemical test for blood alcohol content, with the majority concluding that the adjudicator also acted, impermissibly, as an advocate and the dissenter insisting that she didn’t.
At issue in the case is what degree of neutrality must be exhibited by a hearing officer (“HO”) in the wake of the April 15, 2022 pronouncement by Div. Four of in California DUI Lawyers Assn. v. Department of Motor Vehicles that the two roles must be separated, notwithstanding a statute, restricted to Department of Motor Vehicles (“DMV”) administrative hearings, permitting one person to wear two hats. Then-Justice (now Presiding Justice) Brian Currey said in that opinion:
“Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process.”
In an opinion filed Thursday, Justice Thomas M. Goethals wrote for himself and Acting Presiding Justice Eileen C. Moore in holding that Department of Motor Vehicles (“DMV”) Hearing Officer Cherrie Wallace took on dual roles at George Loy Clarke’s license-suspension hearing on Sept. 14, 2022. Justice Thomas A. Delaney saw it differently.
Clarke’s Contention
Clarke argued in his opening brief on appeal that the proceeding before Cherrie was conducted “under the exact same structure as proscribed” in Currey’s opinion, remarking that “[u]nsurprisingly, HO Wallace concluded that the evidence she had proffered on the DMV’s behalf supported her conclusion that Appellant had refused a chemical test” which he denies. It’s his contention that he did not decline outright to take a test but that, before indicating whether he wanted to give a blood or breath test, he wanted to talk with a lawyer, invoking his Miranda right.
In his reply brief, Clarke noted that the DMV “and its exact same counsel that represented it” in the appeal decided in 2022 by this district’s Court of Appeal “are proffering the exact same argument rejected” in Currey’s opinion, asserting that the DMV “offers absolutely no evidence it had changed the structure other than the hearing officer stating at Appellant’s…hearing that she was not longer an ‘advocate’.” He contended:
“In other words, the DMV wants the Court to take it at its word because after all, it is the Government. Appellant urges the Court to not do so and reminds the Court of ‘The nine most terrifying words in the English Language are: I’m from the Government, and I’m here to help.’ ”
Those words were spoken by President Ronald Reagan at an Aug. 12, 1986 press conference.
DMV’s view
Representing the DMV, the Office of Attorney General said in the respondent’s brief:
“The record reflects the hearing officer allowed in all of Appellant’s proffered evidence and never acted as an advocate. The hearing officer ruled against Appellant not due to any bias based on the hearing officer’s role, but because the evidence overwhelmingly established Appellant had in fact refused to submit to post-arrest chemical testing.”
It maintained:
“The mere fact that a single individual gathers facts and also decides the case does not offend due process and that is all that happened here. The hearing officer has no discretion but to put in evidence the documentation provided to the DMV from law enforcement. The hearing transcript demonstrates the hearing officer did not engage in advocacy. The hearing officer admitted all of Appellant’s testimony and merely asked some clarifying questions. The hearing officer did not rule on Appellant’s objections to her clarifying questions or instruct Appellant to answer her clarifying questions. Rather, she explained her reasons for asking the clarifying questions and rephrased the questions. There is no hint that the hearing officer was anything more than a neutral fact finder.”
Goethal’s Opinion
In his opinion reversing Orange Superior Court Judge Michael J. Strickroth’s denial of writ relief, Goethal wrote:
“It is not the employee’s designation or title that is dispositive. It is the function, or functions, the employee actually performs during the APS hearing that will decide the issue. Here the HO marshalled, identified, and offered into evidence the DMV’s exhibits. HO Wallace then overruled Clarke’s objections and admitted those exhibits. The HO thereafter rigorously cross-examined Clarke. Considering her performance in its totality, we conclude HO Wallace assumed the prohibited dual roles of both adjudicator and advocate. When the HO thereafter suspended Clarke’s driver’s license, his right to receive due process was violated.”
The justice expressed agreement with the conclusion by the Fifth District in its May 9 decision in Knudsen v. Department of Motor Vehicles, authored by Justice Charles Poochigian, that a failure to adhere to the dictates of Currey’s opinion is structural error, compelling reversal.
A remand was ordered for a determination as to whether Clarke did, truly, refuse to provide a sample.
Dissenting Opinion
Delaney sided with Strickroth’s view. He said:
“First, the majority fairly describes how the HO marshalled, identified, and presented evidence which supported Clarke’s license suspension. But the law allows HOs to develop a factual record under these circumstances and they are expected to make evidentiary rulings….
“Second, the majority states the HO ‘rigorously cross-examined Clarke’ during the hearing. I read the record differently. Clarke’s testimony under examination by his attorney was somewhat contradictory and unclear regarding the cause and nature of his confusion about the requirement that he submit to a breath or blood test. He also admitted he did not understand some of the HO’s questions, prompting the HO to ask additional clarifying questions. The HO acted within her proper, limited role as a factfinder in seeking to clarify Clarke’s testimony before making her decision….
“It is worth noting that, at the outset of the hearing, the HO expressly acknowledged it was not her role to function as an advocate. Although the HO’s understanding of her limited role at the hearing is not dispositive, I agree with the trial court it is persuasive, particularly where, as here, the HO conducted the hearing as a factfinder by proffering evidence and asking clarifying questions, not as an advocate.”
The case is Clarke v. Gordon, 2024 S.O.S. 3185.
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