California’s courts have frequently addressed a party’s due process rights to a fair and impartial decision maker in quasi-judicial proceedings, holding that during such proceedings there must be separation of prosecutorial functions from advisory functions. Those cases do not, however, address the litigation conduct of an administrative agency and its staff when (1) the agency is a party to litigation and, thus, not acting as a decision maker, and (2) staff’s participation cannot affect the fairness and impartiality of the decision maker, which is the court.

On October 28, 2016, in a case of first impression, the Court of Appeal for the First Appellate District ruled that the participation of California Coastal Commission staff members in litigation after they advocated for enforcement orders against Drakes Bay Oyster Company in Commission proceedings does not violate the company’s due process rights. Drakes Bay Oyster Company v. California Coastal Commission, __ Cal.App.5th __ (2016) (Case No. A142820).

The case arose out of certain unpermitted development on the site of the company’s 1,060-acre mariculture facility in the estuarial bays of Point Reyes National Seashore. In 2003, the Commission ordered the company to cease and desist engaging in unpermitted development. In 2006, the company sought permits for certain of its operations and improvements. The parties never fully resolved their issues and, in 2013, the Commission held an enforcement hearing. Staff advocated that the Commission issue certain orders regarding unpermitted development the company undertook in violation of the California Coastal Act.

The recommended orders would require the company to undertake a number of measures, including specifying operating conditions to protect coastal resources and addressing Coastal Act permitting requirements. The orders would also require the company to, among other things, cease and desist from conducting any further unpermitted development, remove specified items of unpermitted development, apply for a coastal development permit to obtain permanent authorization for limited, specified development and operations that may be consistent with the Coastal Act. At the conclusion of the hearing, the Commission voted unanimously to issue the orders recommended by its enforcement staff.

The company then filed a petition for writ of mandate and complaint for declaratory relief, challenging the enforcement order in nine causes of action, including that the Commission infringed on its due process rights. In particular, the company contended that allowing enforcement staff to continue representing and advising the Commission in the litigation appeared improper and violated the advocate-witness rule. The company also argued that its due process rights were being violated by the enforcement staff members’ participation in the litigation after their prosecution of the company before the Commission.

The company moved for a preliminary injunction, based on its due process cause of action, to enjoin the enforcement staff from advising other staff or the Commission regarding the company’s permit application and from advising the Commission in the litigation, and to disqualify the enforcement staff from representing the Commission in the litigation. The Commission opposed the motion, arguing that the due process rules governing adjudicatory hearings in which the Commission is the decision maker did not apply to the subsequent litigation in which the Commission was a party and the court was the decision maker. The trial court denied the company’s motion because the Company had not shown a likelihood of prevailing on the merits.

The Court of Appeal framed the company’s appeal as posing a single dispositive question:

“As a matter of law, does the three Enforcement Staff members’ participation in the litigation after they had prosecuted the Company in Commission enforcement proceedings violate the Company’s due process rights?”

The Court concluded that it does not because the Commission’s staff members’ participation merely helps the agency act as a party in litigation and not as a decision maker in a quasi-judicial administrative proceeding regarding the company’s interests. The Court noted that all of the key cases the parties debate—Howitt v. Superior Court; Nightlife Partners, Ltd. v. City of Beverly Hills; Quintero v. City of Santa Ana; Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board; and Morongo Band of Mission Indians v. State Water Resources Control Board—address a party’s due process rights, in a quasi-judicial administrative proceeding, to an impartial review and decision by the administrative decision maker. Moreover, all of those cases hold, in essence, that an agency’s staff may not act so as to create either the unacceptable risk of, or actual, bias by such a decision maker.

In short, the due process concern those cases address is whether the impartiality of an administrative decision maker might be affected by a prosecuting attorney who also advises the decision maker in the course of the administrative proceeding or has advised the decision maker so frequently in other proceedings as to create an unacceptable risk of bias or actual bias that affects the result of the administrative proceeding.

The California Supreme Court and appellate courts held, in those cases, that the due process right to an impartial administrative decision maker is protected when staff counsel performing a prosecutorial role are distinct from counsel playing an advisory role in the same matter and the two are screened from each other. The courts have recognized an exception where staff counsel has advised the decision maker for so long or so frequently as to create an unacceptable risk of, or actual, bias when he or she then performs the role of prosecutor before that same administrative tribunal. The impartiality of the decision maker is further protected when ex parte communications between a prosecutor and the decision maker about substantive issues in the administrative proceeding do not occur before the decision is made.

In Drakes Bay Oyster Company, the Court rejected the argument that the separation of prosecuting and advising attorney roles and prohibition against ex parte communications between prosecutors and administrative decision makers continues to apply when an administrative decision proceeds to litigation. The Court noted that none of the relevant cases provide support for the notion that an administrative prosecutor cannot advise confidentially or represent the agency decision maker in subsequent litigation about that matter. Once litigation has been filed, the agency and its staff share the same interest in defending its decision. Due process does not require the courts to tie the hands of the agency in the litigation and prevent it from reaching out to enforcement staff for expertise and advice in circumstances in which administrative proceedings are no longer pending and it is a party to litigation challenging its decision.