Woodland Hills Residents Assn., Inc. v. City Council , 26 Cal. 3d 938 ( 1980 )

BIRD, C. J., Concurring and Dissenting.

I concur in the judgment, but I cannot join the majority’s sweeping language and conclusions.

Although I am sympathetic with the attempts of plaintiffs to ensure governmental decision making which is free from bias, this court is not well equipped to hammer out the proper standards for disqualification based solely on the receipt of lawful campaign contributions. Surely the amount of the contribution, its timing, its method, as well as the significanee of the issue being considered, would be relevant in judging the appearance of bias. While the specter of a decision maker having received large campaign contributions from one of the parties in the adjudication process is troubling and a worthy subject for scrutiny (cf. Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 518 [113 Cal.Rptr. 836, 522 P.2d 12]), a legislative body is better equipped to initially address this problem. It can more easily determine whether existing requirements governing disclosure of conflict of interest are sufficient to ensure fair hearings before city councils. (Cf. First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 789 [55 L.Ed.2d 707, 725-726, 98 S.Ct. 1407].)

Accordingly, it is not the place of this court to declare, as does the majority, that “[a]dequate protection against corruption and bias is afforded through the Political Reform Act and criminal sanctions.” (Maj. opn., ante, p. 947.) Whether or not this is true is a matter for the Legislature to determine.

The presence of an unbiased tribunal has long been regarded as an essential component of due process of law. (In re Murchison (1955) 349 U.S. 133, 136 [99 L.Ed. 942, 946, 75 S.Ct. 623]; Peters v. Kiff (1912) 407 U.S. 493, 501-502 [33 L.Ed.2d 83, 93-94, 92 S.Ct. 2163].) It is essential if our political and jurisprudential systems are to function. Indeed, little value would attach to other procedural protections if the decision makers were biased.

Sensitive to the importance that fairness plays in our political and legal processes, the courts have repeatedly held that furtherance of these objectives justifies infringing on the very “fundamental rights” at issue in this case. (E.g., Buckley v. Valeo (1976) 424 U.S. 1, 26-29 [46 L.Ed.2d 659, 691-694, 96 S.Ct. 612] [upholding recordkeeping, reporting and disclosure requirements, as well as a limitation on campaign contributions]; Hays v. Wood (1979) 25 Cal.3d 772, 780, 782-783 [160 Cal.Rptr. 102, 603 P.2d 19] [upholding disclosure requirements]; Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 46-48 [157 Cal.Rptr. 855, 599 P.2d 46] [upholding registration and reporting requirements]; County of Nevada v. MacMillen (1974) 11 Cal.3d 662 [114 Cal.Rptr. 345, 522 P.2d 1345] [upholding a conflict of interest law and disclosure requirements]; Morial v. Judiciary Com’n. of State of La. (5th Cir. 1977) 565 F.2d 295, cert. den. 435 U.S. 1013 [56 L.Ed.2d 395, 98 S.Ct. 1887] [upholding statute and canon of judicial ethics requiring a judge to resign from the bench when running for an elective, nonjudicial office]. Cf. Hardie v. Eu (1976) 18 Cal.3d 371, 378 [134 Cal.Rptr. 201, 556 P.2d 301].) The majority’s assertion to the contrary is simply wrong.

The majority correctly note that a campaign contribution does not constitute a “financial interest” which could precipitate the official’s disqualification under the Political Reform Act of 1974. (Maj. opn., ante, p. 945.) Therefore, the act is not available as a basis for precluding the defendant council members from participating in the underlying proceeding. However, the majority proceed to suggest that even if there were a conflict of interest, the participation of the council members would be permitted. (Maj. opn., ante, fn. 7.) This unnecessary observation is not only gratuitous but erroneous as well.

Government Code section 87101 provides that an official otherwise disqualified from participating in a decision under Government Code section 87100 may act if “his participation is legally required.. . .” (Italics added.) While the city council may be required to act in the present case—a conclusion which is disputed by plaintiffs and which the court need not decide—the disqualification of a particular member would not preclude the council from acting.¹ In light of the general objective of the act to avoid having officials participate in decisions affecting their financial interests (Gov. Code, §§ 81001, subd. (b), 87100), it would appear more reasonable to construe section 87101 to permit participation only where a governmental decision requires the individual’s participation.² Such a construction is consistent with regulations promulgated by the Fair Political Practices Commission mandating a narrow construction for the exception in Section 87101. (Cal. Admin. Code, tit. 2, § 18701, subd. (c).)

1 In fact, two members of the council did not participate in the challenged vote. There is no suggestion that the council’s action was defective for that reason.

2 This construction is also consistent with the second sentence of section 87101, which provides that “[t]he fact that an official’s vote is needed to break a tie does not make his participation legally required for purposes of this section.” Again, the emphasis is on the status of the individual official, not the body of which he or she is a member.