Superior Court Upholds Retirement Board's Provision of Due Process Through Administrative Hearing Process
Due process-based claims have taken center stage in several claims against some California public retirement systems of late. A recent ruling by the Superior Court for the County of Marin, however, held that the Board of Retirement of the Marin County Employees’ Retirement Association (MCERA) correctly handled its response to a due process challenge to the Administrative Law Judge (ALJ) who adjudicated a disability retirement application on its behalf. In so doing, the Court also confirmed that disqualification procedures outlined in California Code of Civil Procedure (CCP) § 170.3 for superior court judges do not apply to administrative law judges (ALJs). Viviana Greene v. Office of Administrative Hearings, No. Civ. 1701907, Superior Court for the County of Marin (Nov. 8, 2017). Finally, the Court affirmed the process the MCERA Board used to adjudicate the due process challenge itself.
Petitioner had filed an application with MCERA for service-connected disability retirement benefits. MCERA referred the application to the Office of Administrative Hearings (OAH) for adjudication. After a five-day hearing, which included testimony from treating physicians, the OAH’s ALJ denied the application. The Petitioner filed an objection to the ALJ’s ruling, and sought to disqualify the ALJ and to declare his decision void, by alleging that the ALJ was not impartial because of his past employment as a General Counsel with the medical institution that treated the petitioner.
MCERA’s Board responded to that objection by referring the matter back to the Presiding OAH for a recommended determination on the due process challenge. The OAH’s Presiding ALJ undertook the motion and denied Petitioner’s motion to disqualify the ALJ.
Thereafter, the Petitioner filed a peremptory writ of administrative mandamus in the Superior Court for the County of Marin against both OAH and MCERA to set aside the Presiding ALJ’s order denying the petition to disqualify the ALJ. The OAH filed a Notice of Non-Appearance, leaving the defense of the MCERA Board’s decision-making process and final decision on the matter to the retirement system.
Impartiality Standards Applicable to Administrative Law Judges
In an attempt to blur the line between administrative law judges and superior court judges, Petitioner urged the application of the judicial disqualification statutory procedures outlined in CCP § 170.3 for superior court judges to recuse themselves. Petitioner argued that the Presiding ALJ should have deemed the ALJ disqualified because the ALJ allegedly failed to follow the procedure outlined in CCP § 170.3, i.e., he should have either filed an answer or consent to Petitioner’s objection against him within 10 days of having received it.
MCERA argued that CCP § 170.3 does not apply to administrative law judges and/or administrative proceedings; it applies only to judges of the Superior Court. Among other things, MCERA argued that California Code § 11512, governs disqualification of an administrative law judge. County of San Diego v. Alcoholic Beverage Control Appeals Bd., 184 Cal. App. 4th 396, 406 (2010). And Government Code § 11512 has not adopted any procedural requirements of CCP § 170.3.
The court agreed. It held that:
MCERA correctly argues that Code of Civil Procedure section 170.3 does not apply. Government Code section 11512, part of the APA, governs the disqualification of an administrative law judge. ... [ ] Section 11512, subdivision (c), does not incorporate the procedures set forth in section 170.3. Indeed, under section 11512, subdivision (c), the administrative law judge will oftentimes determine the challenge himself or herself, and therefore it makes no sense to attempt to apply the requirements of section 170.3 which Petitioner contends apply. Under section 170.3, the judge does not determine the challenge himself or herself. (§170.3, subd. (c)(5).)
Provision of Due Process to Applicant
Petitioner had also argued that the MCERA Board erred in remanding the matter to the Presiding ALJ to address the allegation of impartiality. The Superior Court did not appear to have any concern with MCERA’s Board’s approach on that point. After reviewing the administrative record of the underlying proceeding, which included the Presiding ALJ’s findings and determination as well as the MCERA Board’s adoption of that determination, the Court denied the petition for writ. The Court concluded, using the standard provided in CCP §170.1(a)(6)(A)(iii):
a reasonable person would not doubt the ALJ who conducted the hearing’s ability to render an impartial decision based on his previous [medical institution] employment. Nor was the ALJ’s non-disclosure of his previous . . . employment problematic under the Code of Judicial Ethics. [The medical institution] was not a party and had no interest in Petitioner’s application.
Finally, the Court concluded, [w]hile there is no doubt that Petitioner disagrees with the ALJ’s decision, there is simply insufficient evidence supporting her conclusion that there was a reasonable doubt as to his impartiality.
Challenges to the impartiality of administrative hearing officers may not arise frequently, but when they do, retirement systems have reasonable, common sense legal standards and administrative processes to apply, as articulated by the superior court in Greene. This approach affords due process to the retirement systems’ members and should resolve such disputes fairly and expeditiously.
About the Authors
Nossaman Partner and Co-Chair of the Public Pensions & Investment (PP&I) Practice Group, Ashley Dunning successfully represented MCERA in Viviana Greene v. Office of Administrative Hearings, No. Civ. 1701907, Superior Court for the County of Marin (Nov. 8, 2017). She, as well as Nossaman partners and PP&I Practice Group members Peter Mixon and John Kennedy, are available to respond to questions regarding the legal issues addressed in this E-Alert.