The Ag's Opposition to Lay Representation in Alj Cases: Bad Law, Bad Policy
| Jurisdiction | California,United States,Federal |
| Author | By Michael Asimow |
| Publication year | 2019 |
| Citation | Vol. 42 No. 1 |
By Michael Asimow
Michael Asimow is a Visiting Professor of Law, Stanford Law School, and Professor of Law Emeritus, UCLA School of Law. Mr. Asimow is co-author of the Rutter Group California Practice Guide—Administrative Law and was a consultant to the California Law Revision Commission's 1995 amendments to the adjudication provisions of the Administrative Procedure Act. He also served as consultant to the Administrative Conference of the United States in its 2016 project to adopt best practices for evidentiary hearings outside the Administrative Procedure Act.
Lay representation refers to representation of a client by a non-lawyer or by a lawyer not admitted to practice in California. Lay representation is common and well accepted in both California and federal administrative law.
In Opinion No. 14-101,1 the California Attorney General ruled that lay representation is not permitted in California administrative adjudications heard by administrative law judges (ALJs) employed by the Office of Administrative Hearings (OAH). Opinion 14-101 is wrong and should be ignored by ALJs in cases in which a private party wishes to be represented by a non-lawyer or by a lawyer not admitted in California. If an ALJ refuses to allow lay representation in reliance on the AG's opinion, the resulting agency decision should be judicially challenged.2
In addition to being wrong on the merits, the opinion represents misguided public policy by denying badly needed representation to private parties in administrative proceedings who cannot afford lawyers.
To explain why the AG Opinion is wrong, it is necessary to explain the structure of the adjudication provisions of the California Administrative Procedure Act (APA). This structure is rather complex because it was created by statutes enacted fifty years apart—in 1945 and 1995.3 The APA describes two different types of adjudication, referred to as Tier 1 and Tier 2 adjudication.4
Government Code sections 1150011529 describe Tier 1 adjudication. ALJs from OAH preside over Tier 1 adjudication. Tier 1 covers business and professional licensing disputes as well as many other administrative schemes. Tier 1 adjudication was created by the original 1945 version of the APA and was altered very little by the 1995 revision. An agency adjudicatory scheme is covered by Tier 1 only if a statute specifically so provides.5
Tier 2 adjudication covers evidentiary hearings provided by state agencies that are not governed by Tier 1. These include such prominent agencies as the Workers' Compensation Appeals Board, the Unemployment Insurance Appeals Board, the State Personnel Board, the Coastal Commission, the Department of Tax and Fee Administration, the Department of Social Services, and many others. This category of adjudication was recognized by the 1995 amendments to the APA contained in Government Code sections 11400-11470. ALJs from OAH do not preside in Tier 2 hearings.
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By far the most important part of the 1995 APA amendments was the creation of the Administrative Adjudication Bill of Rights (AABOR), providing for such basic due process protections as separation of functions, prohibition of ex parte communication, impartial decisionmakers, open hearings, and written decisions.6 The 1995 amendments to the APA contain numerous other provisions besides AABOR that are designed to achieve fair procedures and to enhance agency flexibility. And here's the thing: these provisions apply by statute to both Tier 1 and Tier 2 adjudication.7
The Attorney General opinion states that there is no indication in the APA that lay representation is authorized in Tier 1 cases and therefore it is prohibited. This statement is incorrect, because the APA has numerous provisions that recognize lay representation and that apply to both Tier 1 and 2.8
For example, the APA states that notice can be given to a party's attorney or "other authorized representative of record in the proceeding."9 The same "other authorized representative" language occurs in several other provisions of the Tier 2 provisions of the APA that are equally applicable to Tier 1.10 Indeed, the "other authorized representative" language occurs in a Tier 1 provision that allows an ALJ to order an attorney "or other authorized representative" to pay reasonable expenses in the event of failure to appear at a hearing.11 And the same language appears in several OAH regulations that are obviously applicable to Tier 1.12 What does the Attorney General think is meant by "other authorized representative"? It can refer only to a lay representative.
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The California Supreme Court has made it...
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