Due process violated when DMV Hearing Officer acts as an advocate

Knudsen v. Department of Motor Vehicles (Cal. Ct. App., Apr. 4, 2024, No. F085992) 2024 WL 1453228, at *1

Summary: Knudsen appealed the suspension of his driver’s license at an administrative per se (APS) hearing. A hearing officer for the Department of Motor Vehicles (“DMV”) concluded that Knudsen had driven his car with a blood-alcohol content (BAC) of 0.08 percent or greater. Knudsen challenged the hearing officer’s decision through a writ of mandate in the Kern County Superior Court. The writ of mandate was denied, and the suspension sustained, by the trial court. On appeal, Knudsen argues in part that his state and federal due process rights were violated because the hearing officer who conducted the APS hearing was not constitutionally impartial.

California DUI Lawyers Assn. v. DMV (2022) 77 Cal.App.5th 517, 532–533. (DUI Lawyers) held that an administrative public hearing officer who acts as both an advocate and adjudicator violates a driver’s due process right to an impartial adjudicator. How to resolve a driver’s due process challenge to an APS hearing following DUI Lawyers has not been addressed by California courts. The Court of Appeal concluded that to resolve such a challenge, it is first necessary to determine whether a particular driver’s due process right to an impartial adjudicator was violated. According to DUI Lawyers, that determination is made by assessing the administrative record and the revocation decision to see if the public hearing officer actually acted as both an adjudicator and an advocate, or merely acted as an adjudicator and a collector and developer of evidence. If the relevant documents demonstrate that the public hearing officer did not act as an advocate, then the driver’s due process right to an impartial adjudicator was not violated, and the constitutional issue is resolved. If the relevant documents demonstrate that a public hearing officer actually acted as an advocate, then the driver’s due process right to an impartial adjudicator is violated. In the latter circumstance, because we conclude that a violation of the due process right to an impartial adjudicator is a structural error, then the driver is entitled to a new APS hearing before a constitutionally impartial adjudicator.

Here, we conclude that the public hearing officer acted as both an adjudicator and an advocate, which entitles Knudsen to a new APS hearing. The Court of Appeal reversed and remand for a new APS hearing.

PROCEDURAL BACKGROUND

On June 14, 2021, Knudsen was arrested for violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol).

On February 4, 2022, an APS hearing pursuant to section 13557 was conducted.

On February 8, 2022, the APS public hearing officer found that Knudsen had been lawfully arrested and had driven with a BAC of 0.08 percent or greater.  Knudsen’s license was suspended pursuant to sections 13353.2 and 13353.3.

On February 22, 2022, Knudsen filed a writ of mandate with the Kern County Superior Court to challenge the suspension determination.

On March 1, 2023, the trial court denied the writ of mandate and concluded that the weight of the evidence supported the suspension.

On March 28, 2023, Knudsen filed a notice of appeal.

Due Process Right to Impartial Adjudicator in an Agency Hearing

“Where due process requires an administrative hearing, the individual has the right to a tribunal ‘which meets at least the currently prevailing standards of impartiality.’ ” (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657.) An impartial adjudicator, even in the agency setting, is an “irreducible minimum” requirement of due process. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) The currently prevailing standards of impartiality recognize that the right to an impartial, nonbiased adjudicator is violated in one of two ways, through either (1) actual bias, or (2) a constitutionally intolerable probability of bias. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737.)  To demonstrate a due process violation of the right to an impartial adjudicator, the complaining party must lay a specific foundation that is supported by specific evidence that demonstrates either actual bias or a constitutionally intolerable probability of bias.

DUI Lawyers

The Second District recently addressed the requirement of an impartial adjudicator within the APS hearing context. DUI Lawyers involved a challenge to a DMV policy that required the same DMV employee to, among other things, act as both an adjudicator and an advocate. (DUI Lawyers, supra, 77 Cal.App.5th at p. 526.) DUI Lawyers held that:

“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. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decision maker on the other, presents a “ ‘particular combination of circumstances creating an unacceptable risk of bias.’ ”

DUI Lawyers acknowledged that an agency could have a single individual perform multiple functions, such as collecting and developing evidence and acting as an adjudicator, without violating the constitutional right to due process. (DUI Lawyers, supra, 77 Cal.App.5th at p. 533, fn. 5.) The constitutional problem arose only from the public hearing officer acting as advocate and adjudicator. The DMV acknowledged that it “is a party to an APS hearing, the hearing is adversarial, and the hearing officer’s role involves both advocating on behalf of the DMV and acting as fact finder,” this created a constitutionally intolerable risk of bias by the hearing officers against the drivers. (Id. at p. 532.) The policy implemented by the DMV violated the due process right to an impartial adjudicator. To remedy this unconstitutional practice, DUI Lawyers held section 14112, subdivision (b) to be unconstitutional “to the extent it permits the DMV to combine the advocacy and adjudicatory roles in a single APS hearing officerand imposed an injunction permanently enjoining the DMV “from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.”

Structural Error

California and federal cases either expressly recognize or appear to assume that the violation of the due process right to an impartial adjudicator, through a showing of actual bias or through a showing that a constitutionally intolerable probability/risk of bias exists, is deemed a structural error that requires reversal without regard to the sufficiency of the evidence or the possibility of a harmless error analysis.

Application to APS Hearing Appeals

As a taxpayer challenge, California DUI Lawyers Assn. applied constitutional principles to theoretical circumstances and with the assumption and understanding that DMV policies would be fully executed and implemented in every APS proceeding. California DUI Lawyers Assn. assumed that a hearing officer would actually act as an advocate in addition to acting as an adjudicator, as required by policy. (See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed. In an actual case, it may be that a public hearing officer did not actually act as an advocate despite the DMV’ stated policy. A prima facie case, which establishes the necessary facts to revoke a license may often be established through the submission of and the hearing officer adjudicates without actually acting as an advocate. In particular, as recognized by DUI Lawyers itself, the same agency employee may collect and develop evidence and act as the adjudicator in a single case without offending due process. DUI Lawyers found that the due process right to an impartial adjudicator was violated because a public hearing officer who acts as both advocate and adjudicator creates a constitutionally intolerable risk of bias. If a hearing officer does not actually act as an advocate, but instead merely collects and develops evidence and then renders a decision, then the due process right to an impartial adjudicator would not be violated in a particular case because the adjudicator did not actually act as an advocate. Then, constitutional due process protections are respected and implemented, and the goals of public safety and minimizing the time that heavily intoxicated drivers are permitted to travel the public highways are fulfilled.

The DMV should be given the opportunity to show that a public hearing officer did not actually act as an advocate. Whether a hearing officer actually acted as an advocate for the DMV should be determined by examining the records and transcripts of the APS hearing, as well as the decision rendered by the hearing officerIf the DMV can make a showing that the hearing officer did not actually act as an advocate, it will have also demonstrated that the due process violation identified in DUI Lawyers did not actually occur. As a result, no constitutional error would be present, and the merits of any other properly preserved issues may be addressed. If the DMV cannot adequately demonstrate that a hearing officer did not actually act as an advocate, then the due process violation identified in DUI Lawyers will have occurred.

Application to Knudsen’s APS Hearing

Here, the public hearing officer acted as an advocate for the DMV. Because the hearing officer acted as an advocate and adjudicator, Knudsen’s due process right to an impartial adjudicator was violated. Knudsen is entitled to a new APS hearing.

Disposition

The superior court’s order denying Knudsen’s petition is reversed. This matter is remanded with instructions for the superior court to issue a writ of mandate directing the DMV to vacate its decision and to conduct a new APS hearing before a new hearing officer.

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