Andrews v. Agricultural Labor Relations Board , 28 Cal. 3d 781 ( 1981 )

CLARK, J.

I dissent.

The appearance of bias—those circumstances leading a reasonable person to doubt the impartiality of the trier of fact—is not only a sufficient but a compelling ground for disqualification. Disqualification on the basis that a quasi-judicial officer appears biased is essential to the health and stability of the adjudicative process for two fundamental reasons. 1. The litigant’s due process right to a fair hearing is protected. 2. Public confidence in the integrity of our system of justice is sustained.

The United States Supreme Court has long recognized the due process right to a fair trial in a tribunal free from even the appearance of bias. That court stated in Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163]: “[E]ven if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias.” (Id., at p. 502 [33 L.Ed.2d at p. 93]; italics added.)

Freedom from the appearance of bias has also been recognized as essential to public respect for, and belief in, the adjudicative process. “The reason for the rule that trials and quasi-judicial hearings must not only be fair in fact, they must also appear to be fair, is that judicial officers possess no real power except that which is derived from the respect and confidence of the people. Judicial power will not long endure if public respect and confidence is destroyed because judicial power is exercised in an unfair manner or appears to be exercised in an unfair manner.” (Wood v. City Civil Service Commission (1975) 45 Cal.App.3d 105, 111 [119 Cal.Rptr. 175]; italics added.)

By requiring the near impossible—a showing of actual bias—before a quasi-judicial official must disqualify himself, the majority fail to protect due process and public confidence concerns. The “actual bias” standard protects only against the most egregious and flagrant instances of bias. Only in truly rare cases will such blatant displays of bias be openly disclosed. To illustrate the type of “concrete" showing they would require, the majority discuss cases in which the judicial officer disclosed in no uncertain terms that he had prejudged the issue before testimony was received, or that he had prejudged a case in its pretrial stages.¹ In most cases, however, a judge will not openly express a predisposition in favor of a particular litigant or result. Bias, unlike other deprivations of due process which may be clearly determined on the record, is generally an invisible influence and for that reason must be particularly guarded against.

Under today’s ruling, a party appearing before the ALRB will be left without recourse against deprivation of due process by an ALO with an apparently powerful but unprovable predisposition against such party. This court recognized the difficulty of proving actual bias in Johnson v. Superior Court (1958) 50 Cal.2d 693, 697 [329 P.2d 5], “It is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid suspicion of unfairness.... Prejudice, being a state of mind, is very difficult to prove, and, when a judge asserts that he is unbiased, courts are naturally reluctant to determine that he is prejudiced.” In a later expression, this court stated: “‘[I]t is not only the fact but the appearance of prejudice that should disqualify a judge. This is a rule that appeals to the reason of the Constitution. ... [I]t is not the fact of prejudice that would impair the legitimacy of the judiciary’s role but rather the probable fact of prejudice, i.e., the appearance of prejudice. The truth of few, if any, ultimate “facts” of human existence are established to the point of complete certitude which eliminates all possible doubt. A fact as difficult of ascertainment as any person’s “prejudice” is seldom, if ever, proven so completely that reasonable persons might not still disagree.’” (Solberg v. Superior Court (1977) 19 Cal.3d 182, 19 Cal.3d 182, 193 [137 Cal.Rptr. 460, 561 P.2d 1148].)

The majority express concern that an “appearance of bias” standard will be “vague, unmanageable and laden with potential mischief.” However, as contemplated by the court in Evans v. Superior Court (1930) 107 Cal.App. 372, 382 [290 P. 662], the test for appearance of bias is whether the facts honestly stated “‘point to a certain condition that would absolutely influence men in the business transactions of life, and when applied to the particular case would lead a reasonable person to hesitate as to whether or not the judge could, under the circumstances, considering the weaknesses of human nature, entirely ignore such facts. ...’” (Dakan v. Superior Court (1905) 2 Cal.App. 52 [82 P. 1129].) Such “reasonable man” test would be easy to apply. It becomes unmanageable only to those who consciously choose to find reason not to apply it.

Admittedly, use of an “appearance of bias” standard may result in disqualifications both in cases of actual bias and in cases where there is no bias. But when an individual’s fundamental right to a fair hearing is at stake, is it not better to err on the side of justice rather than to impose the risk that in an instance of actual but unprovable bias the prejudiced party will be without remedy?

An appearance of bias should be particularly guarded against in ALRB hearings. First, regulations pertinent to those hearings make them especially vulnerable to charges of bias. An ALO is authorized by regulation to decide the question of his own disqualification when properly challenged. {Ante, p. 788, fn. 1.) In contrast, in judicial proceedings a judge is mandatorily disqualified upon peremptory challenge (Code Civ. Proc., § 170.6) and, even after the peremptory challenge has been exercised, continuing disqualification challenges to successor judges—if a prima facie case is stated—are determined by other disinterested judges (Code Civ. Proc., § 170, subd. 5). In National Labor Relations Board (NLRB) hearings the federal counterpart to the ALO, the administrative law judge, is relatively free from NLRB control (see generally, 5 U.S.C.A. §§ 551-706) and is forbidden from engaging in an independent practice of law, thus avoiding the kind of conflict of interest plaguing the instant case. (29 C.F.R. § 100.735-13(a)(1) (1980).)

It moreover appears that ALRB regulations making hearings vulnerable to charges of bias are directly contrary to the declared purpose of the Agricultural Labor Relations Act (ALRA). That purpose is “to insure peace in the agriculture fields” and “to bring certainty and a sense of fair play to a presently unstable and potentially volatile condition in the state.” (Stats. 1975, Third Ex. Sess, § 1, p. 4013 ch. 1.) If this result is ultimately to be achieved—even after five years of continuing instability and distrust in the fields—farm workers and growers alike must be able to appear before the ALRB confident in the knowledge that any cause before that board will be objectively and fairly resolved.

In circumstances calling for particular vigilance against the appearance of bias, the ALO in the instant case blatantly ignored the declared purpose of the ALRA in refusing to disqualify himself. He was then an active member of a public interest law firm, Public Advocates, Inc. He had current and continuing loyalties and allegiances to his firm and to its present and future clients upon whom the major source of the ALO’s livelihood depended. While the law firm was dedicated to furthering the interests of the victims of poverty and racial and ethnic discriminations—certainly a most commendable dedication—it is equally as certain that the judicial system should not lend itself to furthering those purposes by condoning standards of conduct not otherwise acceptable.

At the time of these hearings in 1975 and 1976, a public perception existed that agricultural workers were frequently subjected to economic, social and ethnic discriminations and that growers who employed them took advantage of their plight. The growers in this case were in the class of persons against whom the ALO’s law firm was dedicated to pursue in advancing the interests of farm worker members of real party in interest, the United Farm Workers, a civil and labor rights organization.

Illustrative of the interests shared by the ALO as advocate in other cases and as trier of fact in the instant case, suggesting impermissible bias, his law firm represented farm workers in 250 Farm Workers v. Secretary of Labor Brennan (No. 70-481 (N.D.Cal., filed 5 Mar. 1970)), a case in which California farm workers charged in a class action the California Department of Human Resources Development (now the Employment Development Department) with operating a grower oriented and dominated farm labor service across the state. Farm workers who are parties in the instant case were presumably members of the class in 250 Farm Workers.²

While the record does not prove actual bias, such proof is unnecessary when, as here, it is replete with the appearance of bias. That appearance is made all the clearer by the ALO’s failure to file his findings until 14 months after all evidence had been received, ALRB regulations requiring a 10-day decision making period. Such delay increased the likelihood the ALO’s findings would have been colored by events, judgments and feelings related to his practice during the intervening months. The ALO ruled against petitioner growers on all major issues.

The majority agree that the nature of the ALO’s law practice is irrelevant to prove bias, because bias refers to a mental attitude towards a party and not to political or social viewpoints regarding subject matter. However, when an ALO’s law firm consistently represents the same limited class of clients, it may be reasonably concluded the ALO is programmed not only to a particular viewpoint on legal and social issues but also to a bias in favor of the particular class he represents and, correspondingly, to a predisposition against those classes generally cast in an opposing role. Bias against a class of which a party is a member is sufficient grounds for disqualification. (Adoption of Richardson (1967) 251 Cal.App.2d 222 [59 Cal.Rptr. 323].)

The majority argue that because the ALRB may itself engage in factfinding upon its independent review of the record, there exists an adequate remedy when it appears an ALO has been biased. However, after substantial investment of money and other resources in conducting a hearing and producing a decision, the ALRB is naturally reluctant to overturn such decision for any reason other than clear error on the record. Moreover, subtle but nonetheless unfair findings and other influences attributable to a biased ALO cannot be effectively recognized, established or challenged on an administrative record. In the instant case the ALRB adopted essentially all of the ALO’s findings and recommendations, not even addressing the issue of the ALO’s bias. In Inland Steel Co. v. National Labor Relations Board (7th Cir. 1940) 109 F.2d 9, 21), the court stated: “But we are unable to comprehend how the Board could restore to the petitioner a right of which it had been deprived by the Trial Examiner—that is, a fair and impartial hearing. In fact, the Board, in its decision, made no mention of the charge of bias directed against its Examiner ... . ”

The record establishes as a matter of law an appearance of bias— denying to petitioners due process of law—when the ALO refused to step aside from this case five years ago. The writ should be granted and the decision set aside.

Richardson, J., concurred.

Petitioners’ application for a rehearing was denied March 16, 1981. Bird, C. J., did not participate therein. Files, J.,^* participated therein. Richardson, J., was of the opinion that the application should be granted.

1 In the cases discussed by the majority—Pratt v. Pratt (1903) 141 Cal. 247 [74 P. 742] and Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 88 [147 Cal.Rptr. 44]—the court speaks compellingly of the need for the appearance of fairness. The majority attempt to distinguish these cases by focusing on their particular facts and concluding that actual bias existed. The majority thus emasculate the critical holdings in these cases by restricting them to their facts or to facts as egregious.

2 Note the amicus to California Rural Legal Assistance in support of the ALRB and United Farm Workers in this case is joined by Public Advocates, Inc., the ALO’s law firm.

* Assigned by the Acting Chairperson of the Judicial Council.