Filed 2/9/09

IN THE SUPREME COURT OF CALIFORNIA

MORONGO BAND OF MISSION
INDIANS,
Plaintiff and Respondent,
S155589
v.
Ct.App. 3 C052177
STATE WATER RESOURCES
CONTROL BOARD,
Sacramento County
Super. Ct. No. 04CS00535
Defendant and Appellant.
___________________________________ )

In an administrative proceeding to revoke a water license, does it violate
the license holder’s constitutional right to due process of law, as the Court of
Appeal held here, for the agency attorney prosecuting the matter before the State
Water Resources Control Board to simultaneously serve as an advisor to that
board on an unrelated matter? We conclude that the answer is no, and we
therefore reverse the Court of Appeal’s judgment.
I
The Morongo Band of Mission Indians (Morongo Band), a federally
recognized California Indian tribe, is the current holder of a license to divert
water, for irrigation purposes, from springs arising in Millard Canyon in Riverside
County. In April 2003, the State Water Resources Control Board (Board) issued a
notice of proposed revocation of that license on the grounds that the Morongo
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Band, or prior holders of the same license, had failed to beneficially use the water
for an extended period and had violated license terms by using the water for
unauthorized purposes. (See Wat. Code, §§ 1675-1675.1.) The Morongo Band
requested a hearing to contest the proposed license revocation. The Board issued
a notice of public hearing, which identified Staff Counsel Samantha Olson as a
member of the enforcement team prosecuting the case.
In March 2004, before the public hearing was held, the Morongo Band
petitioned the Board to disqualify the entire enforcement team prosecuting its
license revocation because one or more team members had concurrently advised
the Board in other matters. Citing the then recent Court of Appeal decision in
Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the Morongo Band
asserted that these dual prosecutorial and advisory roles of the enforcement team
members had created “an inappropriate and impermissible appearance of
unfairness and bias sufficient to compel their removal.” In support of the petition,
the Morongo Band submitted a declaration stating that during the pendency of the
license revocation proceeding, in which Samantha Olson was acting in a
prosecutorial capacity as a member of the enforcement team, she was also acting
in an advisory capacity as a member of the hearing team in a separate matter
before the Board, regarding the American River.
A hearing officer denied the Morongo Band’s petition to disqualify the
enforcement team, and the Morongo Band petitioned the Board for reconsideration
of that ruling. (See Wat. Code, § 1122.)
In April 2004, while the petition for reconsideration was pending before the
Board, the Morongo Band filed in superior court a petition for writ of mandate.
(Wat. Code, § 1126; Code Civ. Proc., § 1094.5.) In the petition, the Morongo
Band contended that the hearing officer had abused his discretion and violated the
Morongo Band’s due process rights by denying the petition to disqualify the
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enforcement team. In July 2004, the Board issued an order denying the Morongo
Band’s reconsideration petition, and the Morongo Band filed an amended petition
in superior court seeking review of that order.
In opposition to the Morongo Band’s writ petition, the Board submitted a
declaration by Victoria Whitney, the head of its Division of Water Rights,
describing relevant aspects of the agency’s internal structure and operating
procedures. According to that description, which the Morongo Band does not
dispute, the agency, at that time, was divided into several offices, including an
executive office and an office of chief counsel, and also into four divisions:
administrative services, water quality, financial assistance, and water rights. The
office of chief counsel employed 37 attorneys, who were assigned to different
practice areas. Around a third of those attorneys advised the nine regional water
quality control boards (see Wat. Code, § 13200 et seq.), while the other attorneys
assisted and advised the five-member Board, which governs the agency, in various
practice areas, including water quality, loans and grants, underground storage
tanks, and water rights.
Five agency attorneys practice in the area of water rights. In water rights
adjudicative proceedings, a Board member serves as the hearing officer, and the
agency’s practice is to separate the prosecutorial and advisory functions on the
staff level, with some employees assigned to an enforcement team and others to a
hearing team. For each proceeding, the office of chief counsel assigns different
staff attorneys to the enforcement and hearing teams. Although agency staff
employees do not combine adjudicative and prosecutorial functions in the same
proceeding, a staff attorney assigned to an enforcement team may also be assigned
to advise the Board members, in an unrelated proceeding, as a hearing team
member.
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The hearing officer and the other Board members treat the enforcement
team “like any other party.” Agency employees assigned to the enforcement team
are screened from inappropriate contact with Board members and other agency
staff through strict application of the state Administrative Procedure Act’s rules
governing ex parte communications.1 (Gov. Code, § 11430.10 et seq.) “In
addition, there is a physical separation of offices, support staff, computers,
printers, telephones, facsimile machines, copying machines, and rest rooms
between the hearing officer and the enforcement team (as well as the hearing
team),” according to the Whitney declaration. “Staff members of the enforcement
team and hearing team have their separate work spaces, computers, e-mail
accounts and telephones, but they may in some cases share support staff, printers,
facsimile machines, copying machines and rest rooms.”
For the Morongo Band license revocation proceeding, Samantha Olson was
the staff attorney assigned to the enforcement team while another attorney, Dana
Heinrich, was assigned to the hearing team. For this proceeding, Olson’s
supervisor is Andrew Sawyer, an assistant chief counsel, and Heinrich’s
supervisor is Chief Counsel Craig M. Wilson. Consistent with the state
Administrative Procedure Act’s rules governing ex parte communications (Gov.
Code, §§ 11430.10-11430.80), Olson has been and will be screened from
inappropriate contact with Wilson relating to this proceeding (even though Wilson
is normally Olson’s indirect supervisor), and Heinrich has been and will be
screened from inappropriate contact with Sawyer (even though Sawyer is
normally Heinrich’s supervisor). Similar separation and screening procedures are

1
By administrative regulation, the state Administrative Procedure Act’s rules
regarding ex parte communications govern adjudicative proceedings before the
Board. (Cal. Code Regs., tit. 23, § 648(b).)
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used for team assignments and supervision of the agency’s nonattorney technical
staff.
The agency has employed Samantha Olson since October 2001. Before the
Morongo Band license revocation proceeding, she had served as an enforcement
team member three times. The only adjudicative proceeding in which she served
as a hearing team member, advising the Board, was an unrelated matter on a
petition to revise the Board’s “fully appropriated stream declaration” regarding the
Lower American River. That proceeding terminated in January 2005.
After considering the materials submitted by the parties, the trial court
granted the petition for writ of mandate compelling Olson’s disqualification. The
Board appealed, and the Court of Appeal, over one justice’s dissent, affirmed the
trial court’s judgment granting the writ.
We granted the Board’s petition for review.
II
Under the Fifth Amendment to the United States Constitution, “[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law.”
(See also U.S. Const., 14th Amend. [“[n]o state shall . . . deprive any person of
life, liberty, or property, without due process of law”].) In almost identical words,
the California Constitution likewise guarantees due process of law. (Cal. Const.,
art. I, §§ 7, subd. (a) [“A person may not be deprived of life, liberty, or property
without due process of law”], 15 [“Persons may not . . . be deprived of life, liberty,
or property without due process of law”].)
When, as here, an administrative agency conducts adjudicative
proceedings, the constitutional guarantee of due process of law requires a fair
tribunal. (Withrow v. Larkin (1975) 421 U.S. 35, 46.) A fair tribunal is one in
which the judge or other decision maker is free of bias for or against a party.
(People v. Harris (2005) 37 Cal.4th 310, 346; see Haas v. County of San
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Bernardino (2002) 27 Cal.4th 1017, 1025 [“When due process requires a hearing,
the adjudicator must be impartial.”].) Violation of this due process guarantee can
be demonstrated not only by proof of actual bias, but also by showing a situation
“in which experience teaches that the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable.” (Withrow v.
Larkin, supra, at p. 47.)
Unless they have a financial interest in the outcome (see Haas v. County of
San Bernardino, supra, 27 Cal.4th at p. 1025), adjudicators are presumed to be
impartial (Withrow v. Larkin, supra, 421 U.S. 35, 47). Here, the Morongo Band
has presented no evidence that the Board, or any of its members, is actually
prejudiced against it. Instead, it argues that when the agency attorney who is
prosecuting an administrative license revocation proceeding has concurrently
advised the adjudicator in a separate albeit unrelated matter, the risk that the
agency adjudicator will be biased in favor of the prosecuting agency attorney is of
a magnitude sufficient to overcome the presumption of impartiality. We disagree.
As we explain, any tendency for the agency adjudicator to favor an agency
attorney acting as prosecutor because of that attorney’s concurrent advisory role in
an unrelated matter is too slight and speculative to achieve constitutional
significance.
By itself, the combination of investigative, prosecutorial, and adjudicatory
functions within a single administrative agency does not create an unacceptable
risk of bias and thus does not violate the due process rights of individuals who are
subjected to agency prosecutions. (Withrow v. Larkin, supra, 421 U.S. 35, 54; see
Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 880-884;
Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 833-835;
Pierce, Administrative Law Treatise (4th ed. 2002) § 9.9, pp. 688-689.) Thus,
“[p]rocedural fairness does not mandate the dissolution of unitary agencies, but it
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does require some internal separation between advocates and decision makers to
preserve neutrality.” (Department of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 10.)
As we recently explained (Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd., supra, 40 Cal.4th at pp. 8-9), the state
Administrative Procedure Act (Gov. Code, § 11400 et seq.) was revised in 1995 in
accordance with recommendations of the California Law Revision Commission,
after the commission had studied the matter for seven years. (See
Recommendation: Administrative Adjudication by State Agencies (Jan. 1995) 25
Cal. Law Revision Com. Rep. (1995) p. 55.) To ensure the impartiality of
administrative adjudicators, the act generally prohibits ex parte communications
(Gov. Code, § 11430.10) and requires “internal separation of functions”
(Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Bd., supra, 40 Cal.4th at pp. 8-9; see Gov. Code, §§ 11425.10, subd.
(a)(4), 11425.30).
Significantly, however, the state Administrative Procedure Act requires the
internal separation of prosecutorial and advisory functions on a case-by-case basis
only. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Bd., supra, 40 Cal.4th at p. 16, fn. 12 [“As . . . the text of [the state
Administrative Procedure Act] plainly allows, the separation of functions can be
accomplished on a case-by-case basis.”].) The act does not prohibit an agency
employee who acts in a prosecutorial capacity in one case from concurrently
acting in an advisory role in an unrelated case. We have summarized the act’s
relevant restrictions this way: “The agency head is free to speak with anyone in
the agency and to solicit and receive advice from whomever he or she pleases—
anyone except the personnel who served as adversaries in a specific case.
[Citations.] Indeed, the agency head can even contact the prosecutor to discuss
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settlement or direct dismissal. [Citations.] Virtually the only contact that is
forbidden is communication in the other direction: a prosecutor cannot
communicate off the record with the agency decision maker or the decision
maker’s advisers about the substance of the case.” (Department of Alcoholic
Beverage Control v. Alcoholic Beverage Control Appeals Bd., supra, at pp. 16-17,
italics added, fn. omitted; see also Gov. Code, § 11430.30, subd. (a) [allowing ex
parte communication “for the purpose of assistance and advice to the presiding
officer from a person who has not served as investigator, prosecutor, or advocate
in the proceeding or its preadjudicative stage” (italics added)].)
The federal Administrative Procedure Act is to the same effect, requiring
internal separation of functions, but only on a case-by-case basis. It provides:
“An employee or agent engaged in the performance of investigative or prosecuting
functions for an agency in a case may not, in that or a factually related case,
participate or advise in the decision, recommended decision, or agency review
pursuant to section 557 of this title, except as witness or counsel in public
proceedings.” (5 U.S.C. § 554(d), italics added; see also Asimow, The Influence
of the Federal Administrative Procedure Act on California’s New Administrative
Procedure Act (1996) 32 Tulsa L.J. 297, 316 [stating that “[s]eparation of
functions must be defined and administered in ways that permit decisionmakers
access to needed staff advice except in cases where the adviser has significant
adversarial involvement in the case under decision”].)
The Morongo Band has not cited, nor has our own research uncovered, a
decision from any federal court, or from a court of any other state, agreeing with
the holding of the Court of Appeal here that in an administrative license
revocation proceeding it is a violation of the license holder’s constitutional right to
due process of law for the agency attorney acting as prosecutor to concurrently
advise the administrative decision maker in an entirely unrelated proceeding.
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The Court of Appeal here concluded, however, that internal separation of
functions on a case-by-case basis is insufficient to satisfy the constitutional
requirements for due process of law, and that an administrative agency’s internal
separation of functions must be complete not only as to each individual case, but
also as to all cases, related or unrelated, that are pending before the agency at any
given point in time. To support its conclusion, the Court of Appeal relied on
Quintero v. City of Santa Ana, supra, 114 Cal.App.4th 810 (Quintero). There, a
city employee (Quintero) appealed a misconduct discharge to the city’s personnel
board. After a hearing, the personnel board upheld the discharge. Quintero then
petitioned the superior court for a writ of mandate, arguing that the administrative
hearing before the personnel board was unfair because the deputy city attorney
(Halford) who had acted as prosecutor concurrently had represented the personnel
board in civil actions. (Id. at p. 812.) The superior court denied the petition, but
on Quintero’s appeal the Court of Appeal reversed, finding “a clear appearance of
bias and unfairness at the administrative hearing.” (Ibid.)
The Court of Appeal in Quintero did not use the per se approach that the
Court of Appeal adopted here. After acknowledging there was no evidence that
Halford, the deputy city attorney who had prosecuted Quintero, had also acted as
the city personnel board’s legal adviser in the Quintero discharge matter, the court
proceeded to examine Halford’s other interactions with the personnel board.
(Quintero, supra, 114 Cal.App.4th at pp. 814-816.) The court concluded that in
litigation over the discharge of two other city employees, Cabrera and Pollitt,
internal separation of advisory and prosecutorial functions had not been
maintained because Halford had represented the personnel board in superior court
mandate proceedings after acting as a prosecutor in administrative proceedings
before that board. (Id. at p. 815.) The court also noted that Halford had played a
leading role in advising the personnel board about revision of its procedural rules
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and had acted as the personnel board’s legal adviser in other important matters
during the years immediately preceding Quintero’s discharge. (Id. at p. 816.)
Stating that “[i]t appears the lines distinguishing Halford’s roles of
advocate and adviser have become blurred,” the Court of Appeal in Quintero
stated that “[f]or the [personnel board] to allow its legal adviser to also act as an
advocate before it creates a substantial risk that the [personnel board]’s judgment
in the case before it will be skewed in favor of the prosecution.” (Quintero, supra,
114 Cal.App.4th at p. 817.) The court explained its holding in these words: “We
do not hold that the frequent contacts between Halford and the [personnel board]
are themselves sufficient to demonstrate the probability of actual bias. Rather, our
decision is based on the totality of circumstances.” (Ibid.)2
Thus, the Quintero Court of Appeal appears to have relied on two
circumstances not present here. First, in the earlier employee discharge matters
involving Cabrera and Pollitt, the agency’s internal separation of functions had not
been maintained. Rather, in each of those matters, Deputy City Attorney Halford
had acted in both prosecutorial and advisory capacities, taking a confidential and
advisory role as the personnel board’s legal representative in superior court
mandate proceedings after having acted as a prosecutor in the adversarial
proceedings before the personnel board. Second, the record suggested that

2
Although the Quintero Court of Appeal stated and applied a totality-of-the-
circumstances test, its opinion also contains language suggesting the existence of a
per se rule barring agency attorneys from simultaneously exercising advisory and
prosecutorial functions, even in unrelated proceedings. Thus, for example, the
court stated that “[w]hat is inappropriate is one person simultaneously performing
both functions” and that “the attorney may occupy only one position at a time and
must not switch roles from one meeting to the next.” (Quintero, supra, 114
Cal.App.4th at p. 817.) We disprove any language in Quintero that is inconsistent
with our decision here.
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Halford had become more than just one among a group of legal advisers that the
personnel board could consult, and instead had become its sole or primary legal
adviser. Under its totality-of-the-circumstances approach, the Quintero Court of
Appeal relied on both of these circumstances in combination to support its
conclusion that constitutional due process had been violated.
Here, by contrast, there is no evidence of either circumstance. There is no
evidence that Staff Counsel Samantha Olson, or any other agency staff attorney,
ever acted in both advisory and prosecutorial capacities in this or any other single
adjudicative proceeding.3 Nor is there any evidence that the Board has ever
regarded Olson as its sole or primary legal adviser. On the contrary, the
undisputed evidence is that Olson has advised the Board in only one matter, which
concerned the American River and was unrelated to the Morongo Band’s license
revocation proceeding, and that she is just one of a group of staff attorneys from
whom the Board may obtain legal advice. Because Quintero, supra, 114
Cal.App.4th 810, is distinguishable in these ways, it does not provide persuasive
authority for the Court of Appeal’s holding here.
The Court of Appeal’s stated rationale for its per se rule is that “[h]uman
nature being what it is, the temptation is simply too great for the . . . Board
members, consciously or unconsciously, to give greater weight to Attorney
Olson’s arguments by virtue of the fact she also acted as their legal adviser, albeit
in an unrelated matter.” As Justice Robie observed, in his dissenting opinion in
the Court of Appeal, the majority’s relationship-bias reasoning “applies far beyond

3
In superior court, and in later appellate proceedings in this matter, the
Attorney General, rather than Olson or any other staff counsel, has represented the
Board. (See Wat. Code, § 186, subd. (c) [“The Attorney General shall represent
the board . . . in litigation concerning affairs of the board . . . .”].)
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the situation where an attorney is simultaneously acting as an advocate before an
administrative board and an adviser to the board in an unrelated matter.” That
reasoning would apply also when the prosecuting agency attorney has acted as an
adviser to the agency adjudicator in an unrelated matter at any time in the past.
Arguably, the rationale would also require disqualification of an attorney
representing a license holder like the Morongo Band if that attorney at any time in
the past had served the agency adjudicator in an advisory capacity in an unrelated
matter. And in countless other situations when the adjudicator may have formed a
favorable opinion of the abilities of one of the litigating attorneys through some
previous social or professional interaction, the Court of Appeal’s reasoning would
require the attorney’s disqualification, even though this court has concluded that
similar relationships ordinarily are not disqualifying. (See, e.g., People v. Carter
(2005) 36 Cal.4th 1215, 1243-1244; see also People v. Vasquez (2006) 39 Cal.4th
47, 64 [“As neither judges nor prosecutors can completely avoid personal
influences on their decisions, to constitutionalize the myriad distinctions and
judgments involved in identifying those personal connections that require a
judge’s or prosecutor’s recusal might be unwise, if not impossible.”].)
In construing the constitutional due process right to an impartial tribunal,
we take a more practical and less pessimistic view of human nature in general and
of state administrative agency adjudicators in particular. In the absence of
financial or other personal interest, and when rules mandating an agency’s internal
separation of functions and prohibiting ex parte communications are observed, the
presumption of impartiality can be overcome only by specific evidence
demonstrating actual bias or a particular combination of circumstances creating an
unacceptable risk of bias. Unless such evidence is produced, we remain confident
that state administrative agency adjudicators will evaluate factual and legal
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arguments on their merits, applying the law to the evidence in the record to reach
fair and reasonable decisions.
The Court of Appeal’s judgment is reversed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Morongo Band of Mission Indians v. State Water Resources Control Board
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 153 Cal.App.4th 202
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S155589
Date Filed: February 9, 2009
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Judy H. Hersher

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Gordon Burns, Deputy State Solicitor
General, Tom Greene and Janet Gaard, Chief Assistant Attorneys General, Mary E. Hackenbracht,
Assistant Attorney General, and Matthew J. Goldman, Deputy Attorney General, for Defendant and
Appellant.

Manuela Albuquerque and Patrick Whitnell for League of California Cities and California State
Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

Peter H. Mixon and S. Kingsley Macomber for California Public Employees’ Retirement System as
Amicus Curiae on behalf of Defendant and Appellant.

Michael Asimow as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Somach Simmons & Dunn, Stuart L. Somach, Kristen T. Castaños, Kanwarjit S. Dua and Daniel Kelly for
Plaintiff and Respondent.

Diepenbrock Harrison, Michael V. Brady, Jon D. Rubin, David A. Diepenbrock Valerie C. Kincaid and
Sean K. Hungerford for San Luis & Delta-Mendota Water Authority and Westlands Water District as
Amici Curiae on behalf of Plaintiff and Respondent.

Downey Brand, Kevin M. O’Brien, Maja K. Haium and Andrea P. Clark as Amici Curiae on behalf of
Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Gordon Burns
Deputy State Solicitor General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-3081

Stuart L. Somach
Somach Simons & Dunn
813 Sixth Street, Third Floor
Sacramento, CA 95814
(916) 446-7979

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Document Outline

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Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: May a staff attorney for an administrative agency attorney serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter, without violating the due process rights of parties that appear before the agency?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 02/09/2009	45 Cal. 4th 731, 199 P.3d 1142, 88 Cal. Rptr. 3d 610	S155589	Review - Civil Appeal	closed; remittitur issued

Disposition
Feb 9 2009	Opinion: Reversed

Dockets
Aug 21 2007	Petition for review filed   State Water Resources Control Board, Defendant and Appellant Matthew J. Goldman, Deputy Attorney General
Aug 22 2007	Received Court of Appeal record   1-doghouse
Sep 7 2007	Request for depublication (petition for review pending)   State Water Resources Control Board, appellant by Christiana Tiedemann, deputy attorney general
Sep 10 2007	Answer to petition for review filed   Respondent, Morongo Band of Mission Indians by counsel, Stuart L. Somach.
Sep 17 2007	Opposition filed   Respondent, Morongo Band of Mission Indians, to depublication request of Appellant, State Water Resources Control Board. by counsel, Stuart L. Somach.
Sep 20 2007	Reply to answer to petition filed   Appellant State Water Resources Control Board by Christiana Tiedemann, Deputy A.G. (Filed in Sacramento)
Oct 15 2007	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including November 19, 2007, or the date upon which review is either granted or denied.
Oct 24 2007	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Oct 31 2007	Certification of interested entities or persons filed   by atty Stuart L. Somach, counsel for rspt Morongo Band of Mission Indians
Nov 7 2007	Certification of interested entities or persons filed   Attorney General for Appellant, State Water Resources Board.
Nov 9 2007	Request for extension of time filed   Appellant - State Water Resources Control Board, requesting extension till January 22, 2007 to file opening brief on the merits. by Gordon Burns, counsel
Nov 14 2007	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including January 22, 2008.
Nov 14 2007	Received:   Appellant - State Water Resources Control Board amended application for extension of time in which to file petitioner's opening brief on the merits. by Gordon Burns, counsel
Jan 22 2008	Opening brief on the merits filed   State Water Resources Control Board, appellant by Gordon Burns, counsel
Jan 22 2008	Received Court of Appeal record   one file jacket/ one blue file folder
Feb 21 2008	Answer brief on the merits filed   Respondent, Morongo Band of Mission Indians by counsel, Stuart L. Somach.
Feb 28 2008	Request for extension of time filed   Appellant, State Water Resources Control Board. Asking to March 19, 2008, to file the reply brief. by Deputy Attorney General, Gordon Burns.
Mar 5 2008	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including March 19, 2008.
Mar 19 2008	Reply brief filed (case fully briefed)   State Water Resources, appellant by Gordon Burns, counsel
Apr 14 2008	Received application to file Amicus Curiae Brief   Michael Asimow in support of appellant .
Apr 16 2008	Received application to file Amicus Curiae Brief   The San Luis Delta-Mendota Water Authority and Westland Water District in support of respondent. by David A. Diepenbrock Harrison, counsel
Apr 17 2008	Received application to file Amicus Curiae Brief   League of California Cities and California State Association of Counties in support of respondent. by Manuela Albuquerque, counsel
Apr 18 2008	Received application to file Amicus Curiae Brief   Association of California Water Agencies in support of respondent - Morongo Band of Mission Indians. by Kevin M.O'Brien, counsel
Apr 18 2008	Received application to file Amicus Curiae Brief   CALPERS - California Public Employees' Retirement System in support of appellant. by S. Kingsley Macomber, counsel
Apr 24 2008	Permission to file amicus curiae brief granted   The application of Association of California Water Agencies for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 24 2008	Amicus curiae brief filed   Associaton of California Water Agencies in support of respondent. by Kevin O'Brien, counsel
Apr 24 2008	Permission to file amicus curiae brief granted   The application of California Public Employees' Retirement System for permission to file an amicus curiae brief in support of appellant is hereby granted. an answer therto may be served and filed by any party within twenty days of the filing of the brief.
Apr 24 2008	Amicus curiae brief filed   California Public Employees' Retirement System. by S. Kingsley Macomber, counsel
Apr 24 2008	Permission to file amicus curiae brief granted   The application of Michael Asimow for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 24 2008	Permission to file amicus curiae brief granted   The application of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 24 2008	Amicus curiae brief filed   League of California Cities and California State Association of Counties in support of respondent. by Manuela Alburquerque, counsel
Apr 24 2008	Permission to file amicus curiae brief granted   The application of The San Luis & Delta-Mendota Water Authority and Westland Water District for permission to file an amicus curiae brief in support of respondent is hereby granted. an answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 24 2008	Amicus curiae brief filed   The San Luis & Delta-Mendotz Water Authority and Westland Water District in support of respondent. by David Diepenbrock, counsel
Apr 24 2008	Request for judicial notice filed (granted case)   The San Luis & Delta-Mendota Water Authority and Westlands Water District in support of rerspondent. by David Diepenbrock, counsel
May 14 2008	Response to amicus curiae brief filed   Answer to Amicus Curiae Brief - Professor Michael Asimow Morongo Band of Mission Indians, respondent by Stuart L. Somach, counsel
May 14 2008	Response to amicus curiae brief filed   Answer to Amicus Curiae Brief of California Public Employees' Retirement System Morongo Band of Mission Indians, respondent by Stuart L. Somach, counsel
May 14 2008	Response to amicus curiae brief filed   Morongo Band of Mission Indians Answer to Amicus Curiae Brief of League of California Cities and California State Association of Counties. Morongo Band of Missian Indians, respondent by Stuart L. Somach, counsel
May 14 2008	Response to amicus curiae brief filed   Amicus Curiae Brief of Westlands Water District et al., and Association of California Water Agencies State Water Resources Control Board, appellant by Gordon Burns, Deputy Solicitor General
May 14 2008	Opposition filed   Opposition to request for Judicial Notice by Amici Curiae San Luis & Delta-Mendota Water Authority and Westlands Water District. State Water Resources Control Board, appellant by Gordon Burns, counsel
May 29 2008	Note:   received amicus curiae San Luis & Delta-Mendota Water Authority and Westlands Water District 's response to opposition for request for judicial notice . by counsel, David A Diepenbrock
Jun 4 2008	Order filed   The application of amicus curiae San Luis & Delta-Mendota Water Authority and Westlands Water District to file a response to opposition to request for judicial notice is hereby denied.
Jun 6 2008	Received application to file Amicus Curiae Brief   Goodrich Corporation, etal [late] ~Attorneys Jeffrey D. Dintzer, etal
Jun 6 2008	Received:   Request for Judicial Notice w/AC Brief of Goodrich Corporation, etal ~Attorneys Jeffrey D. Dintzer, etal
Jun 12 2008	Order filed   The application of Goodrich Corporation, et al., for permission to file an amicus curiae brief and motion for judicial notice in support of respondent is hereby denied.
Dec 10 2008	Case ordered on calendar   to be argued on Wednesday, January 7, 2009, at 9:00 a.m., in San Francisco
Dec 11 2008	Request for judicial notice denied   The Motion for Judicial Notice brought by Amici Curiae The San Luis & Delta-Mendota Water Authority and Westlands Water District, and filed in this court on April 24, 2008, is denied.
Jan 7 2009	Cause argued and submitted
Feb 6 2009	Notice of forthcoming opinion posted
Feb 9 2009	Opinion filed: Judgment reversed   Opinion by Kennard, J. ----joined by George, C.J., Baxter, Werdegar, Chin, Moreno & Corrigan, JJ.
Mar 12 2009	Remittitur issued (civil case)
Mar 12 2009	Returned record
Mar 17 2009	Received:   receipt for Remittitur from Court of Appeal, Third Appellate District

Briefs
Jan 22 2008	Opening brief on the merits filed
Feb 21 2008	Answer brief on the merits filed
Mar 19 2008	Reply brief filed (case fully briefed)
Apr 24 2008	Amicus curiae brief filed
Apr 24 2008	Amicus curiae brief filed
Apr 24 2008	Amicus curiae brief filed
Apr 24 2008	Amicus curiae brief filed
May 14 2008	Response to amicus curiae brief filed
May 14 2008	Response to amicus curiae brief filed
May 14 2008	Response to amicus curiae brief filed
May 14 2008	Response to amicus curiae brief filed

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Jun 7, 2012 Annotated by Alyssa Weis

FACTS After a request was made by The Morongo Band of Mission Indians (plaintiffs) to contest the proposed revocation of its water license for irrigation purposes, the plaintiffs petitioned for the disqualification of the entire prosecution team. This was because the prosecuting attorney(s) concurrently served as advisors to the State Water Resources Control Board (Board). Plaintiffs asserted that this dual role of the opposing counsel created bias and unfairness in their appearance before the Board. However, in the Board’s submitted declaration describing the inner workings of the agency and its staff they stated that it treats the enforcement team “like any other party.” It also showed that attorneys typically serve as advisory positions to the board on unrelated matters and that, when serving on the enforcement team they are screened for inappropriate contact with board members. PROCEDURAL HISTORY The State Water Resources Control Board (Board) twice denied the Morongo Band’s petition for disqualification in 2004. The Morongo Band filed suit in superior court seeking review of the order. The court granted the petition for the disqualification of a prosecuting attorney. The Board then appealed and the Court of Appeal affirmed the trial court’s judgment over one dissent. The Supreme Court of California granted the Board’s petition for review and reversed. ISSUE In an administrative proceeding, does it violate due process of law for an agency attorney to prosecute the matter before the state board while simultaneously serving as an advisor to that board on an unrelated matter? HOLDING The Supreme Court of California reversed the decision by the Court of Appeal. Thus holding that it does not violate due process of law for an agency attorney to hold both an advisory position for the board while prosecuting on another unrelated matter. REASONING The court noted that when an administrative agency conducts a hearing, due process of law requires a fair tribunal free of bias. However, violation of this due process guarantee should be demonstrated by proof of actual bias. In this case the Morongo Band presented no evidence of actual bias. Thus, the court rationalized that the chance of favoritism by an adjudicator is too slight and too speculative to be constitutionally significant. Placing its trust in the agency, the court stated that, on their own, the functions within an agency do not create a risk of bias. Also, the court noted that the State Administrative Procedure Act requires an internal separation of functions on a case-by-case basis to ensure the impartiality of administrative adjudicators. Thus, the separation within the State Water Resources Control Board properly followed protocol and observed the rules. The only contact forbidden is for a prosecutor to contact an agency decision maker about the substance of the case off the record. However, there was no proof of this placed on the record by the plaintiffs. The court also stated that there have been to no previous decisions by a court on such a matter to support the Morongo Band’s claim. While the Court of Appeal relied on Quintero v. City of Santa Ana, it wanted the separation of functions to extend to every level of an agency, including cases. The Supreme Court of California distinguished between this case and Quintero. There, the agency’s internal separation of functions was not kept and the attorney at issue had been the sole legal advisor for the agency’s board. Here, rather, there was no evidence of either of those circumstances. Thus, with absence of proof of financial or other personal interests for bias, observance of the rules of agency separation by the board, and optimism for human nature the court concluded that due process of law was being upheld in the board hearing. Therefore, the Court of Appeal’s judgment was reversed. TAGS Administrative law, advisor, agency, board, bias, due process, hearings, irrigation, license, Morongo Band of Mission Indians, prosecutor, resources control, tribe, water Annotation By: Alyssa Weis