California’s Administrative Adjudication Bill of Rights

The California Government Code, in Title 2, Division 3, Part 1, Chapter 4.5, Article 6, contains the “Administrative Adjudication Bill of Rights.”

Section 11425.10 provides that the governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following nine requirements:

• The agency must give the person to which the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence.

• The agency must make available to the person to which the agency action is directed a copy of the governing procedure.

• The hearing must be open to public observation.

• The adjudicative function must be separated from the investigative, prosecutorial, and advocacy functions within the agency.

• The presiding officer is subject to disqualification for bias, prejudice, or interest.

• The decision must be in writing, be based on the record, and include a statement of the factual and legal basis of the decision.

• A decision may not be relied on as precedent unless the agency designates and indexes the decision as precedent.

• Ex parte communications must be restricted.

• Language assistance must be made available.

In addition, the requirements of this section apply to the governing procedure by which an agency conducts an adjudicative proceeding without further action by the agency, and prevail over a conflicting or inconsistent provision of the governing procedure.

Section 11425.20 requires a hearing to be open to public observation. This subdivision does not limit the authority of the presiding officer to order closure of a hearing or make other protective orders to the extent necessary or proper for any of the three specified purposes.

To the extent a hearing is conducted by telephone, television, or other electronic means, and is not closed as otherwise required by law, the requirement that the meeting is open to public observation is satisfied if members of the public have an opportunity to hear or inspect the agency’s record or be physically or virtually present at the place where the presiding officer is conducting the hearing. The term “present” is defined.

Note that this section does not apply to a prehearing conference, settlement conference, or proceedings for alternative dispute resolution other than binding arbitration.

Section 11425.30 prohibits a person from serving as a presiding officer in an adjudicative proceeding in any of two specified circumstances. There are two specified exceptions to this rule. The provisions of this section governing separation of functions as to the presiding officer also govern separation of functions as to the agency head or other person or body to which the power to hear or decide in the proceeding is delegated.

Section 11425.40 specifies that the presiding officer is subject to disqualification for bias, prejudice, or interest in the proceeding. It is not grounds for disqualification, without further evidence of bias, prejudice, or interest, that the presiding officer has certain characteristics.

The provisions of this section governing disqualification of the presiding officer also govern disqualification of the agency head or other person or body to which the power to hear or decide in the proceeding is delegated. An agency that conducts an adjudicative proceeding may provide by regulation for peremptory challenge of the presiding officer.

Section 11425.50 requires the decision to be in writing and include a statement of the factual and legal basis for the decision. The statement of the factual basis for the decision may be in the language of, or by reference to, the pleadings.

The statement of the factual basis for the decision is required to be based exclusively on the evidence of record in the proceeding and on matters officially noticed in the proceeding. The presiding officer’s experience, technical competence, and specialized knowledge may be used in evaluating evidence.

Nothing in this section limits the information that may be contained in the decision, including a summary of evidence relied on. And, a penalty may not be based on a guideline, criterion, bulletin, manual, instruction, order, standard of general application or other rule unless it has been adopted as a regulation pursuant to the APA.

Section 11425.60 states that a decision may not be expressly relied on as precedent unless it is designated as a precedent decision by the agency. An agency may designate as a precedent a decision or part of a decision that contains a significant legal or policy determination of general application that is likely to recur.

In addition, an agency is required to maintain an index of significant legal and policy determinations made in precedent decisions. The index must be updated annually, unless no precedent decision has been designated since the last preceding update. The index must be made available to the public by subscription, and its availability is to be publicized annually in the California Regulatory Notice Register.