BILL ANALYSIS
AB 2537
Page 1
ASSEMBLY THIRD READING
AB 2537 (Silva)
As Amended April 14, 2010
Majority vote
BUSINESS & PROFESSIONS 11-0 APPROPRIATIONS 17-0
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|Ayes:|Hayashi, Emmerson, |Ayes:|Fuentes, Conway, Ammiano, |
| |Conway, Eng, Hernandez, | |Bradford, Charles |
| |Hill, Ma, Nava, Niello, | |Calderon, Coto, Davis, De |
| |Ruskin, Smyth | |Leon, Hall, Harkey, |
| | | |Miller, Nielsen, Norby, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
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SUMMARY : Requires agencies conducting adjudicative proceedings
with a presiding officer who is an administrative law judge
(ALJ) to develop regulations to allow a peremptory challenge
(PC) of that presiding officer, as specified.
1)Requires an agency that conducts an adjudicative proceeding to
provide by regulation for PC of a presiding officer who is an
ALJ.
2)Exempts agencies with five or fewer ALJs from developing PC
regulations if the agency has an internal review system for
ALJ disqualification requests in which the determination is
made by the agency itself.
EXISTING LAW :
1)Provides for the conduct of administrative adjudication
proceedings of state agencies through the Administrative
Procedure Act.
2)Provides for the disqualification of a presiding officer for
bias, prejudice, or interest in the proceeding.
3)Authorizes an agency that conducts an adjudicative proceeding
to provide by regulation for PC of the presiding officer.
4)Provides for PC of a judge, court commissioner, or referee in
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superior court.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, any costs associated with this legislation
would be minor and absorbable within existing resources.
COMMENTS : According to the author's office, "Parties in
administrative law proceedings have a substantial stake in the
outcome of that proceeding, and should have the same right to
have their matters heard by a fair and impartial trier of fact
as parties in a court proceeding. Many state agencies,
including the largest, the Office of Administrative Hearings
(OAH) under the Department of General Services, provide for PCs
of ALJs believed to be biased, prejudiced, or interested in the
matter, similar to that provided to civil litigants under Code
of Civil Procedure [Section] 170.6.
"Other agencies, however, do not permit PCs of ALJs - and may
not even provide an effective internal appeals process. At best
this means that a party whose request for disqualification has
been denied by an ALJ must prepare detailed and costly
declarations, typically including extensive hearing transcript
documentation, to appeal the denial of disqualification. At
worst, in cases where the agency in question does not have an
effective appeals process - or even places appeals in the hands
of the same ALJ who denied the initial request for his or her
disqualification - it means that the party must seek relief in
court, unnecessarily delaying a decision on the merits of the
case at great expense to both the party and the agency.
"AB 2537 will rectify this inconsistent and unequal unfair
situation by providing that all agencies must permit parties the
opportunity to excuse administrative law judges on PC. By doing
so, the bill will increase fairness, and should reduce costs for
both the administrative litigants and the agencies themselves."
A PC is disqualification without cause. In the case of this
bill, PCs are presented as a motion by a party to an
administrative proceeding to remove the trier of fact without
giving a reason.
Presently, state agencies conducting adjudicative proceedings
are permitted to develop regulations governing PCs for their
presiding officers, whether ALJs or not. Some agencies, such as
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OAH, which provides ALJs for 1,400 local and state government
agencies, do allow PCs for ALJs in certain circumstances. Other
agencies, such as the Department of Motor Vehicles and the Air
Resources Board, do not. This creates an inconsistent
administrative adjudication structure in the state.
Existing law provides that adjudicative officers are subject to
disqualification for bias, prejudice, or interest in the
proceeding. However, the methods of determining
disqualification vary widely between agencies, and some agencies
even permit the officer in question to determine his or her own
level of bias. Permitting a PC would streamline this process
and create a greater sense of fairness.
A party to a civil or criminal matter in superior court may
issue one PC against a judge, court commissioner, or referee.
ALJs hear no less important cases than those in superior court:
disciplinary matters, terms of employment, tax concerns, health
care and business regulations fall in the purview of
administrative proceedings. The author of this bill argues that
these parties should have the same ability to remove a trier of
fact they feel is biased as those in a superior court. However,
this bill creates an exemption for agencies having five or fewer
available ALJs, if that agency has an internal appellate review
system for ALJ disqualification requests in which the
determination is made by the agency itself. This was borne out
of a concern from some agencies that their limited staff
resources would make the automatic removal unduly burdensome.
This bill does not require agencies to develop PC regulations
for non-ALJ presiding officers, however; this option is still
permissive. The author's office states that there have been no
demonstrated problems with non-ALJ presiding officers.
Analysis Prepared by : Sarah Weaver / B., P. & C.P. / (916)
319-3301
FN: 0004202