Court Ruling Barring Judge Serving As Prosecutor Could Transform Code Enforcement

A ruling by California’s Second District Court of Appeal with regard to the Department of Motor Vehicle’s process for adjudicating the appeals of license revocations of those arrested but not yet convicted of driving while intoxicated has thrown open the door for redressing the way in which many municipalities in San Bernardino County abridge the rights of those accused of various code enforcement violations.
Questions have long existed about the fundamental fairness and constitutionality of the way in which local governments accuse residents and businesses and cite them for various infractions or violations of city codes and thereafter set about verifying those accusations, determining the guilt or responsibility of those cited and then subject the accused to demands for an abatement and punishment including fines and even confiscation of property as a consequence of the government’s enforcement action.
In the vast majority of cases, those cited and accused simply comply with the imposition of the governmental authority applied to them. In some cases, citizens will contest the matters in the forum provided by the government, wherein again, the vast majority of those cases are adjudicated in favor of the government. In the majority of those cases, the residents relent, accepting the outcomes of such adjudication processes. In an extremely slender number of those cases, however, a very few intrepid residents willing to go to the bother and expense of doing so have removed the matter to a higher court, generally speaking a federal court, in which the constitutionality of the code enforcement process is made an issue through the allegation that the citizen’s Fourth Amendment rights to freedom from unreasonable seizures or enforcement, Fifth Amendment right to due process and Fourteenth Amendment right to due process and equal protection have been violated. In a substantial number of those cases, federal courts have moved toward a determination that the code enforcement regimes that cities use are unconstitutional. This has uniformly resulted in cities then abruptly moving to settle those matters outside of court, in virtually every case with a large cash payout, to prevent the federal court from entering a judgment that would set a precedent by which municipal code enforcement processes in general could be challenged and overturned.
The constitutional flaw in the processes municipalities use consists of the manner in which cities seek to cut corners, take shortcuts and reduce their costs with regard to prosecuting those accused of violating city codes. In essence, the cities employ, either directly or under contract, an individual who serves as a code compliance officer, who is authorized to represent the city in making its case against the alleged code violator and who simultaneously serves as the hearing officer on the matter, which essentially melds the functions of prosecutor and judge into one individual.
A case in point which illustrates the thin constitutional ice many local governments are skating on is that of the code enforcement case of the City of Hesperia vs. Esther Duran and Janet Duran, which subsequently turned into the federal case of Esther Duran and Janet Duran vs. the City of Hesperia.
In 2004 Janet Duran, an ambulance driver, took up the cause of doomed horses, including wild mustangs run to ground by cowboys in Nevada and Arizona and ones being sold by their owners at auction for as little as $5, $10, or $15 a head, ostensibly to buyers interested in using them for dogfood. She persuaded her mother, Esther Duran, to shelter some of those horses on property the elder Duran owned on Redwood Avenue in Hesperia.
The Redwood property prior to city incorporation was zoned for agricultural use. The post-incorporation zoning was agricultural-residential and the Durans were permitted under the city’s code to have up to six horses on the property per its acreage.
On January 13, 2010, a team of Hesperia city employees that included two code enforcement officers, four armed sheriff’s department deputies in flak jackets and two animal control officers descended on the Duran property. One of the code enforcement officers served Esther Duran with papers and the team then seized three horses and five dogs, one of which was a stray whose owner the Durans were seeking to locate. Both Esther and Janet were cited and slapped with a total of $129,000 in fees, which upon the city’s processing protocol were ratcheted up into liens against the property. Those liens resulted in Esther Duran’s mortgage increasing from $1,400 to $4,700 per month.
Unwilling to take the city’s action lying down, the Durans hired Upland-based attorney Louis Fazzi to represent them.
Fazzi brought several principles to bear which the city had in the past routinely overlooked in its enforcement efforts, including compliance with the city’s own codes, which actually allowed for the presence of up to three more horses than the Durans had on the property on January 13, 2010 and up to five dogs, as well as the right to due process. The city’s response was to seek a series of delays, which had the effect of increasing the Durans’ legal costs while the underlying issue – the return of their animals – remained unresolved.
Despite the cost, the Durans did not simply duck out of the fight. Fazzi persisted on their behalf, successfully removing the matter to federal court. Still, the city told the court the Durans were maintaining a substandard property and that the animals for that reason should not be returned to them. Fazzi maintained that the property was up to code and in compliance in all regards. In March 2012, a court-appointed independent inspector went over the Redwood property with a fine-tooth comb, concluding the property was indeed up to code.
In April 2012, U.S. District Court Judge John E. McDermott ruled that the city’s action against the Durans was improper and that their animals would have to be returned to them. Fazzi immediately brought a motion to have McDermott consider whether the entire process the Durans had been subjected to was unconstitutional.
While McDermott’s ruling was pending, the city offered the Durans a $200,000 settlement. The tendering of that offer, and the Durans’ acceptance of it, put the matter to rest, preventing a potentially precedent-setting ruling that would prohibit the city from continuing to employ the same tactics against other city residents.
Moreover, had Judge McDermott entered a judgment against Hesperia in the Durans’ case, that ruling could have been used by virtually any citizen within the jurisdiction of the United States District Court for the Central District of California, including all of San Bernardino County, to contest the authority being used by cities in carrying out their code enforcement function.
Since no precedent was set, cities have continued to use their authority in ways that Constitutional law experts say is unlawful.
Now, however, in a California court rather than a federal one, a case has progressed to the point where a decision rendered carries with it, unless it is appealed to the California Supreme Court and reversed, of preventing cities or any governmental entities in California from issuing administrative citations, as is the case with code enforcement actions, and then subjecting the individual cited to a processing and adjudication of that citation in front of a hearing officer or judge who is one and the same as the individual processing or prosecuting the case.
Upon a driver in California being arrested for driving while intoxicated, the Department of Motor Vehicles upon being notified of the arrest suspends the arrestee’s license. If the person arrested chooses to do so, he/she can within ten days request a hearing from the Department of Motor Vehicles to contest the suspension. The Department of Motor Vehicles in such cases makes a presumption that the suspension is justified on the basis of the arrest and, an examination of Department of Motor Vehicles records shows, rejects well in excess of 95 percent of the suspension challenges. In virtually all of the hearings for those challenges, the Department of Motor Vehicles utilizes a department employee to simultaneously act as the department’s “prosecutor” while conducting the suspension hearing as the “judge.”
In 2014 the California Driving Under the Influence Lawyers Association, led by Riverside-based attorney Stephen R. Mandell, brought a taxpayer action against the California Department of Motor Vehicles and Department of Motor Vehicles Director Jean Shiomoto, alleging the hearings the department holds to determine whether automatic suspension of a driver’s license is warranted do not provide the drivers alleged to have engaged in impaired driving with due process under the California and United States Constitutions. The California Driving Under the Influence Lawyers Association alleged that by having the hearing officers simultaneously act as advocates for the Department of Motor Vehicles and as the triers of fact deprived the accused of a neutral hearing officer or unbiased judge.
The Department of Motor Vehicles asserted that the California Driving Under the Influence Lawyers Association did not have taxpayer standing to assert its claims.
The court, in the person of Los Angeles Superior Court Judge Rita Miller, granted the Department of Motor Vehicles’ motion for summary judgment on that basis. Judge Miller did not address the substance of California Driving Under the Influence Lawyers Association’s claims. The California Driving Under the Influence Lawyers Association appealed Judge Miller’s ruling, and in March 2018 the Second District Court of Appeal reversed her, finding that the California Driving Under the Influence Lawyers Association indeed had standing and remanded the case to the trial court for further proceedings.
The case was thereafter considered by Judge Holly Fujie. Upon considering the matter, Judge Fujie ruled in favor of the Department of Motor Vehicles on its contention that the California Driving Under the Influence Lawyers Association assertion of the right to pursue a civil action for deprivation of rights under United States Code § 1983 was inapplicable. Judge Fujie did, however, rule in favor of the California Driving Under the Influence Lawyers Association with regard to due process protections in the California Constitution and its assertion that California’s Code of Civil Procedure section 526a grants a taxpayer the right to bring an action to restrain or prevent an illegal expenditure of public money. The upshot was that Judge Fujie ruled that the Department of Motor Vehicles could not use an individual designated to carry out the prosecutorial function in intoxicated driving license suspension hearings from also serving as the judge or hearing officer.
Gratified with the ruling that the Department of Motor Vehicles could not use a prosecutor as a hearing officer under state law, Mandell and the California Driving Under the Influence Lawyers Association nevertheless appealed Judge Fujie’s finding that federal law, primarily United States Code § 1983, did not similarly allow for a challenge of the Department of Motor Vehicles’ use of a prosecutor to serve as a hearing officer in the same case.
Last Friday, April 15, 2022, the Second District Court of Appeal upheld that element of Judge Fujie’s ruling holding that under California law and the California Constitution drivers accused of driving under the influence are entitled to a hearing officer separate from the individual making the case against them. It reversed her on the question of whether federal law, in particular United States Code § 1983, could be brought to bear in forcing the Department of Motor Vehicles to employ separate prosecutors and hearing officers in such hearings.
“Combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California constitution,” according to the Second District Court of Appeal. “The hearing is adversarial, and the hearing officer’s role involves both advocating on behalf of the DMV and acting as factfinder. The California Driving Under the Influence Lawyers Association contends the Department of Motor Vehicle’s ‘administrative per se’ hearing structure violates the California and federal due process rights of drivers by combining the advocacy and adjudicatory roles into a single Department of Motor Vehicles employee. We agree.”
According to the Second District Court of Appeal, other “courts have held procedural fairness requires some internal separation between advocates and decision makers to preserve neutrality. By definition, an advocate is a partisan for a particular client or point of view. The role is inconsistent with true objectivity, a constitutionally necessary characteristic of an adjudicator.”
The Second District Court of Appeal went on to state, “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 decisionmaker on the other, presents a ‘particular combination of circumstances creating an unacceptable risk of bias.’”
The Second District Court of Appeal’s ruling, though contexed with regard to an adjudication process involving the Department of Motor Vehicles, has a wider latitude of applicability. Having been entered into the books within the state court and standing as a precedent achieved in appellate court, it can now be cited by an enterprising attorney advocating on behalf of a client being subjected to a code enforcement process which likewise involves a hearing officer overseeing the case against an alleged violator who is also prosecuting the case against that defendant.
While the precedent stands at the moment, the possibility remains that another appeal to a higher authority, in this case the California Supreme Court, will be made in an attempt to prevent that precedent from being etched in legal concrete.
Gary Wenkle Smith, a San Bernardino-based defense attorney, said such an appeal is more than likely.
Smith agreed that the Second District Court of Appeal’s ruling on the California Driving Under the Influence Lawyers Association case sets a precedent.
“I think that is a precedent,” Smith said. “But it will last only until it is appealed further, which is probable. If this ruling stands, it will require the DMV to go to great lengths to restructure their system. For hearings, they will need to hire, or at least employ, different people to serve as the hearing officers.”
In his view, Smith said, the Department of Motor Vehicles’ hearing process was due for reform.
“Those hearing officers who are their enforcement advocates are not lawyers,” he said. “That is an issue. They don’t have in-depth legal knowledge, knowledge or expertise as to probable cause and what constitutes probable cause. You have to get to the point of probable cause to be able to force the driver to submit to a blood test. There can be questions, legitimate questions, as to whether probable cause existed. If the person putting on the case needs that evidence, the blood test, to come in to make a case against an accused impaired driver, how would you expect him to fairly consider whether probable cause existed for the blood sample to be taken? What are the chances that the prosecutor, who is relying on that evidence, will make an honest finding as to whether that evidence, if it was illegally or unconstitutionally obtained, should be excluded?”
The system of justice and the state’s administrative processes should not be a simple mill that everyone gets run through, Smith said.
“Under the Constitution and our way of government, defendants have rights,” Smith said. “That’s what the Fourth Amendment guarantees us. That is not something to be taken lightly. The hearing officer should not be the same person who is trying the case. The hearing officer should not be someone who has a close relationship with whoever is trying the case. If you are prosecuting someone, you are not unbiased. The Court of Appeal is absolutely correct. When you have the same person prosecuting someone and running the proceedings, that is a biased hearing. The fairness of a hearing is a Constitutional issue. With this ruling, it is going to cost the State of California and its taxpayers a lot of money to fix a system that is biased. To me, that is a worthwhile investment. But you can bet the DMV is going to appeal this.”
-Mark Gutglueck

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