We could add another couple of bulbs in this section. I was thinking combination of function, fair hearing process, etc. Let me know what you think.
The Intersection of Criminal and Administrative Law
San Luis Obispo County BarCriminal Law SectionThe Intersection of Criminal andAdministrative LawJune 12, 2013, 12:00 PMSteven L. Simas
• Steven L. Simas, Esq. – firstname.lastname@example.org• Experience• Owner and Founder of Simas & Associates, Ltd. since 2002• Deputy Attorney General, Office of the Attorney General• American Veterinary Medical Legal Association• California Academy of Attorneys for Health Care Professionals• Legal Counsel, California Physical Therapy Association, CaliforniaRegistered Veterinary Technician Association• Practice Areas• Health Care Law• Professional Licensing and Regulation• Civil Litigation and Appeals• Employment Law and Workplace Regulation• Justin D. Hein, Esq. – email@example.com• Managing Attorney at Simas & Associates, Ltd. since 2011
Intersection of Criminal andAdministrative Law• Summary Overview1. Administrative Process and Hearing Overview2. Substantially Related to the Profession3. Common Procedural Complexities• Overall Goals of Presentation• Obtain a better understanding of the overlap.• How best to advise clients on what to expect.• When negotiating plea bargains, recognizing the impact andgiving it appropriate weight (even if client does not).• Consult with an experienced administrative law attorney whendealing with complexities of a particular charge.
AdministrativeProcess and HearingOverviewLaw GoverningAdministrativeAdjudicativeProcessBeyondAdministrativeAdjudication• Constitutions (U.S., California)• Administrative Procedure Act(Government Code §§ 11400, et al.)• California Code of Regulations• Business & Professions Code• Evidence Code• Code of Civil Procedure• California Rules of Professional Conduct• Precedential Decisions – within anExecutive Agency• Case Law – California Judicial Branch• Rulemaking• Discretionary and Ministerial Acts• Public Records Act• Government Claims Act• Open Meetings Law• Fair Political Process
AdministrativeProcessandHearingOverview(Background)•Executive Agencies•Local, Municipal, Regional Government•Some Private Entities engaged in Public FunctionBodies Subject toAdministrativeAdjudication•Legislature•Office of the Governor•Judicial Branch•CourtsBodies Not Subjectto AdministrativeAdjudication•Office of Administrative Hearings•Administrative Law Judges (ALJs)•4 offices – Sacramento, Los Angeles, Oakland, San Diego•http://www.dgs.ca.govAdjudicating Body
AdministrativeProcessandHearingOverview(Pre-Charge)Investigation by State Agency•Government Code § 11180•Triggered by Consumer Complaint, Tipfrom Other Agency, Database, Self-Reporting.•Could exceed 2 years.•Oftentimes can involve an Audit.•Licensee has a duty to cooperate.Interview ofLicensee/Applicant•More common in complicated,substantive types of licensing discipline.•Recorded, under oath.•Right to invoke 5th Amendment PrivilegeAgainst Self-Incrimination.Charging Document –Accusation/Statement ofIssues•Should indicate jurisdiction.•Should indicate statutes and regulationsalleged to have been violated.•Should indicate standard of conductbreached.•Disciplinary Guidelines are found inRegulations.•Might include a Temporary SuspensionOrder on Licensed Activity.
AdministrativeProcessandHearingOverview(Continued–Pre-HearingProcess)Notice of Defense•15 days (+5 if served via mail) torespond.•Can file general denial, but thenwaive rights to affirmative defenses,demurrer.•Can file late special notice withAgency permission (Gov. Code §11506(b).)•Default – agency can take licensediscipline without hearing.Discovery – Documents,Subpoenas, LimitedDepositions•Can file motions to compel, motionsto quash, motions in limine.•OAH cannot impose sanctions butcan certify facts to present toSuperior Court.Pre-Hearing SettlementConference Statement•Conference usually 30 days inadvance of hearing.•Provide ALJ with background oncase, identify evidentiary/witnessissues, attempts to settle.
AdministrativeProcessandHearingOverview(Continued–HearingProcess)Pre-HearingSettlementConference• 2-4 hours.• Licensee and individualwith settlement authorityfrom agency must bepresent.Expert WitnessDisclosure• More common in casesinvolving substantive typesof licensing discipline.• More often than not makeor break the case.AdministrativeHearing• Executive Agency (inlicensing matters) has theburden of proof.• Present exculpatoryevidence and evidence ofrehabilitation.
AdministrativeProcessandHearingOverview(Continued–DecisionProcess)Closing Arguments• Sometimes given opportunity topresent closing arguments afterreview of administrative recordand transcript.ALJ’s Decision• Must define jurisdiction.• Must determine whether thealleged misconduct took place(beyond a preponderance orclear and convincing).• Must take into consideration allrehabilitation, mitigating, andcharacter evidence presented.Agency Adoption• Executive Agency and/or itsExecutive Director has thediscretion to adopt, adopt withmodification, or decline toadopt ALJ’s decision.• Could set a new hearing ordecide matter on its own.
AdministrativeProcessandHearingOverview(Continued–Post-HearingProcess)Petition forReconsideration•Attempt to present any othertype of evidence or argumentthat was improperly denied orprevented at hearing.•Vehicle to set aside defaults.•Must be done shortly afterNotice of Adoption of ALJsDecision.Petition for Writ ofAdministrative (orTraditional Mandate) inSuperior Court•Judicial review of theadministrative adjudication.•Often coupled with an ex parteRequest for Stay.Petition for Reinstatementor Modification ofProbation•An attempt to demonstrateoverwhelming evidence ofRehabilitation and Correction,enough to warrant a reduction indiscipline imposed.
AdministrativeProcessandHearingOverview(DifferencesinCommonChargingDocuments)• Statement of Issues• Denial of a license application.• Citations• Business & Professions Code § 125.9• Fine, Order of Abatement, Order of Correction• Compare to a traffic ticket or ordinance violation – a statutorily recognized alternative todisciplinary proceedings• Nevertheless, can be contested via administrative hearing• Accusations• Revocation, suspension, or restriction of an already issued license.• Petition to Revoke Probation or Restricted License• Type of pleading used to impose a previously ordered discipline that had been stayed pendingsuspension, probation, or the completion of some specified form of education, rehabilitation.• Temporary Suspension Orders• “permitting the licensee to continue to engage in the licensed activity will endanger thepublic health, safety, or welfare”• Interim Suspension Order – Administrative• Business & Professions Code § 494; Government Code § 11529• If without notice, a hearing must be held on Accusation within 20 days.• Temporary Restraining Order – Judicial• Business & Profession Code §§ 125.5 – 127.8• Hearing must be held on Accusation within 30 days after issuance.
AdministrativeProcessandHearingOverview(DifferencesinTypesofDiscipline)• Determination of Appropriate Penalty• Mandated by Statute• Prior Decisions – accessible through Public Records Act• Disciplinary Guidelines• Rehabilitation Criteria• Types of Discipline• Revocation• License Surrender• Suspension• Probation (Restricted License, Stayed Revocation)• Public Reproval• Civil Penalties/Fines• Mandatory Restitution• Cost Recovery• Training, Education• Therapy or Treatment
Substantially Related to theProfession• May deny, suspend, or revoke a license on the ground that the applicant orlicensee has been convicted of a crime, if the crime is substantially related tothe qualifications, functions, or duties of the business or profession for thelicense sought or for which the license was issued. (Business & Professions Code§§ 480, 490.)• Typically includes:• Almost all felonies• Crimes of “moral turpitude” – domestic violence, dishonesty, sexual misconduct,controlled substance abuse.• Does not require that the crime be committed while the licensee or applicant wasengaged in licensed activities.• Can look beyond the “conviction” to the underlying conduct that led to theconviction.• “Disturbing the Peace” was considered substantially related to the profession when alicensed alarm manager drew his weapon without proper cause in violation of Business& Professions Code § 7597.3(c). Evidence that the licensee, armed with a rifle, chased awoman down a residential street at 10:00 p.m. and then held her at gunpoint becausehe saw her tearing fliers off his company sign trailer was sufficient to support the finding.• Issue of Law (Morrison v. State Bd. of Educ. (1969) 1 Cal.3d 214, 238.)• Importance in designation is that the conviction itself is sufficient proof of guilt –there is no need to re-litigate the issue of guilt. (Arneson v. Fox (1980) 28 Cal.3d440, 447.)
SubstantiallyRelatedtotheProfession(FurtherBackground)Agency Requirements• Must set out the “substantial relationship” criterion within its regulations (Bus. &Prof. Code § 481.)• Must include a general definition.• Licensing agencies do not "enjoy unfettered discretion to determine on a case-by-case basis whether a given conviction is substantially related to the relevantprofessional qualifications" but must instead rely on their writtencriteria. (Donaldson v. Department of Real Estate (2005) 134 Cal.App.4th 948, 955.)• List of violations presumed to be “substantially related”.Disproving Substantial Relationship• Review the statutes, regulations, disciplinary guidelines.• Determine the definition of what is “substantially related”.• Find the list of crimes that fit that definition or are specified.• Examine facts of what is alleged, charged, convicted, and what is the profession.• Produce Expert Witness Testimony.
SubstantiallyRelatedtotheProfession(Convictions)What Constitutes a Conviction?• Bus. & Prof. Code §§ 480, 490• Defined as a plea or verdict of guilty• Pleas and verdicts of “guilty” are presumed to permit the issuance of licensediscipline, even in the absence of an authorizing statute, as they are a "reliableindicator of actual guilt" to support a disciplinary charge. (Cartwright v. Board ofChiropractic Examrs (1976) 16 Cal.3d 762, 773.)• OR a conviction following a plea of nolo contendere (no contest).• Only if a specific statute so provides. “A nolo contendere plea does not constitute aconviction absent a legislative determination that such pleas and convictions aresufficiently reliable indicators of guilt to warrant disciplinary measures forprotection of the public." (Id. at 774.)• Most licensing agencies’ statutes so provide.What does not Constitute a Conviction?• Acquittal – but does not serve as Res judicata or collateral estoppel given the higherstandard of proof in criminal cases.• Arrest
SubstantiallyRelatedtotheProfession(Convictions)Expungement• Dismissal of a conviction under Penal Code § 1203.4 does not prevent alicensing agency from bringing a disciplinary action based on theconviction. (Bus. & Prof. Code § 490(c); Krain v. Medical Bd. (1999) 71Cal.App.4th 1416, 1420 [agency may take disciplinary action based on expungedconviction unless statute provides otherwise].)• An expungement may be relevant to a license discipline case as evidence ofmitigation or rehabilitation. (See, e.g., 16 Cal Code Regs § 99.1(5) [Board ofAccountancy will consider evidence of expungement proceedings in evaluatinglicensees rehabilitation].) Several agencies are required by law to "give specialconsideration" to applicants whose convictions have been dismissed pursuantto Penal Code § 1203.4.Substance Abuse Conviction Notwithstanding Drug Diversion• A licensing agency may bring disciplinary action even if the licensee successfullycompletes a drug diversion program as part of a criminal case under Penal Code§ 1000.5 (Bus. & Prof. Code § 492).
Procedural Complexities•No constitutional guarantee of representation in administrative proceedings.(Borror v. Department of Inv. (1971) 15 Cal.App.3d 531.)•No constitutional guarantee of effective counsel in administrative proceedings.(White v Board of Med. Quality Assur. (1982) 128 Cal.App.3d 699, 707.)Right toCounsel•An administrative hearing is generally not continued or abated when a criminalaction based on the same facts is pending against the same party. (Savoy Club v.Board of Supervisors (1970) 12 Cal.App.3d 1034, 1038.)•Because administrative proceedings involving license revocation are not criminalin nature but are set up by the legislature to protect the public, it would frustratethe legislative intent to abate the administrative proceeding until the conclusionof the criminal action. (Funke v. DMV (1969) 1 Cal.App.3d 449.)•An agency or administrative law judge (ALJ) does not have to grant a continuancebecause counsel is not available on the date set for the hearing. (Givens v.Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 529.)Continuances
ProceduralComplexities(Continued)•When an administrative remedy is required by statute or by rule of the agencyinvolved, the aggrieved party must use that procedure or remedy before seekingany other remedy, such as direct review by a superior court. (Abelleira v. DistrictCourt of Appeal (1941) 17 Cal.2d 280.)•This is a jurisdictional prerequisite, not a matter of judicial discretion. (Palmer v.Regents of Univ. of Cal. (2003) 107 Cal.App.4th 899.)•Exhaustion of administrative remedies also applies when an agency establishesan internal grievance mechanism (Palmer v. Regents of Univ. of Cal. (2003) 107Cal.App.4th 899), and to proceedings such as hospital peer review. (KaiserFound. Hosp. v Superior Court (Dennis-Johnson) (2005) 128 Cal.App.4th 85.)Exhaustion ofAdministrativeRemedies•Res judicata, also known as claim preclusion, may preclude the subsequentlitigation of a claim litigated and decided in a previous proceeding. Collateralestoppel, also known as issue preclusion, prevents relitigation of an issue decidedin the first proceeding even though the claim in the subsequent proceeding maybe different from the first.•Works both ways:•favorable decision in an administrative proceeding may be used by the licenseein a civil or criminal case.•negative decision in a civil or criminal proceeding may be used against thelicensee in his or her administrative proceeding.Res Judicataand CollateralEstoppel
ProceduralComplexities(Continued)•In some circumstances, the combination of function (investigatory, prosecutory,adjudicatory) within a single agency may violate due process and the fair hearingprocess.•When same person(s) who investigated, bring the charges or are involved in theadjudicative function. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108Cal.App.4th 81, 95.)•Composition of the decision-making body are not competent or unbiasedaccording to statute. (American Motors Sales Corp. v. New Motor VehicleBd. (1977) 69 Cal.App.3d 983, 991.)Combinationof Function•The basic guarantee a licensee is provided – a fair hearing.•The principles of due process determine whether the hearing granted by anagency was fair. Additional procedural requirements are sometimes provided inthe statutes governing particular agencies, and these statutes should beconsulted. State statutes, however, cannot take away federal protections.•It varies, given the factual circumstances.•It does not require any particular form of notice or method of procedure; all thatis required is reasonable notice and a reasonable opportunity to be heard.Fair HearingProcess
ProceduralComplexities(Continued)•Evidence of a statement made at another time or place than by the witness testifying at the hearingand offered to prove the truth of the matter stated. (Evid. Code § 1200.)•Includes the following types:•Transcript of telephone call to Police Department (Melkonians v. Los Angeles County Civil Serv.Commn (2009) 174 Cal.App.4th 1159, 1170.);•Examination reports from a sister state containing allegations of misconduct;•Verified civil complaint;•Administrative Hearsay evidence is permitted into Evidence, when supplementing or explainingother evidence. (Gov. Code § 11513(d); Berg v. Davi (2005) 130 Cal.App.4th 223.)•Cannot be the sole evidence upon which a finding is based. (Gov. Code § 11513(c).)Use ofAdministrativeHearsayEvidence•Hearsay evidence that would normally be admitted over objection in a civil proceeding are NOTadministrative hearsay.•Rather, this evidence CAN be used as sole evidence to support a finding.•Includes the following types:•A police officer’s report (Lake v. Reed (1997) 16 Cal.4th 448, 461) even if it contains anotherofficer’s observations (Gananian v. Zolin (1995) 33 Cal.App.4th 634.) ;•Testimony offered to prove not the truth of a statement but that the statement was made.HearsayEvidenceAdmitted OverObjection
ProceduralComplexities(Continued)• Permitted to be used and accepted as direct oraltestimony unless opposing party objects and requeststo cross-examine. (Gov. Code § 11514(a).)• If party fails to produce affiant/declarant in responseto objection, the affidavit/declaration is still admittedas administrative hearsay. (Gov. Code § 11513(c).)Use ofAffidavit/Declarations• At discretion of the agency or the ALJ, similar mattersmay be consolidated into a single hearing.• A matter may be severed from an existing hearingupon motion of either party or the ALJ in the interestof prejudice or convenience.Consolidation orSeverance of Hearing
ProceduralComplexities(CommonDefenses)Lack of Jurisdiction• An agency can only act within statutory authority. If the agency has misinterpreted a statute, it may be adefense for the licensee.• Regulations must be promulgated under the APA.Constitutionality• An agency cannot declare a law unconstitutional. And failing to raise constitutionality at hearing does notwaive the defense.• Must be raised on a Petition for a Writ of Administrative Mandate.Statute of Limitations• Statutes of limitation barring civil actions do not apply to a disciplinary proceeding of a stateadministrative agency.• There is no specific time limitation for administrative proceedings unless the legislature has imposed astatute of limitation for a particular proceeding. (City of Oakland v. Public Employees RetirementSys. (2002) 95 Cal.App.4th 29, 34.)• If they have, they are more often than not 3 years.Doctrine of Laches• Trial court may dismiss the administrative proceeding if it is not diligently prosecuted or there has beenunreasonable preaccusation delay and the licensee has been prejudiced. (Steen v. City of LosAngeles (1948) 31 Cal.2d 542, 546.)
ProceduralComplexities(CommonDefenses)Privilege Against Self-Incrimination• Licensing agency can compel a licensee to testify at a proceeding. (Gov. Code &11513(b); Black v. State Bar (1972) 7 Cal.3d 676.)• Licensee can then refuse to testify concerning those matters that could lead tocriminal exposure.Entrapment• Applicable to administrative and licensing proceedings. (Patty v. Board of Med.Examrs (1973) 9 Cal.3d 356, 367.)• conduct of a law enforcement agent that "was likely to induce a normally law-abidingperson to commit the offense.“ (People v Barraza (1979) 23 Cal.3d 675, 689.)Illegal Search and Seizure• Where warrantless searches are permitted, they still must be conducted reasonably,“tailored to administrative goals and purposes.” (People v Potter (2005) 128Cal.App.4th 611, 619.)• Limited applicability of exclusionary rule.
ProceduralComplexities(EvidenceofRehabilitation,Mitigation)Hearing on EvidenceRelated toMisconduct• Asserting procedural andsubstantive defenses.• Demonstrating compliancewith relevant standard ofcare.Hearing on Evidenceof Rehabilitation,Mitigation, andCharacter• Demonstrate restitution,remorse for misconduct.• Present corrective action –through rehabilitation,education, training.• Demonstrate an alteredlifestyle – new friends,colleagues, employment.Administrative Adjudicative Licensing Proceedings by their very naturecombine the trial and sentencing functions into a single proceeding
ProceduralComplexities(EvidenceofRehabilitation,Mitigation)Mitigation Evidence• Length of time since misconduct/conviction.• Absence of prior convictions.• Absence of post-misconduct discipline.• Employment record.• Restitution to injured parties.• Reputation in the industry; General reputation incommunity.• Good faith actions and behavior by the licensee.• Efforts made to avoid repetition.• Acceptance of responsibility, remorse.• Honest and earnest assistance duringinvestigation.Rehabilitation Evidence• Volunteering.• Completion of court-order probation.• Expungement of criminal conviction.• Post-violation activities (i.e. employment,education, contributing to social community,etc.)• Restitution (to injured parties, interests).• Abstention from controlled substances• Changed personal, profesisional, familial, orsocial circumstances.• Psychological treatment.• This can lead to admissions or other forms of evidence which couldbe used against the licensee in his or her criminal law matter.• Nevertheless, here are relevant types of Rehabilitation andMitigation evidence:
Closing Points• Ask. Do not rely upon your client to tell you that he/she has a license. Ask andthen explain that it will need to be something that they consider when reviewingplea bargain offers.• Self-Reporting. Find out if your client has a self-reporting obligation. Someagencies, boards, bureaus, or commissions have such a requirement. And shortdeadlines upon which to report.• Need to “Earn Badges”. Clients need to start compiling evidence ofrehabilitation, mitigation, and character immediately. Even if they are not ready(or it is not advisable) to engage in restitution, they must begin contributing tothe community.• Start Identifying Character Witnesses. They may or may not prove helpful toyou in your criminal defense. But, again, directing your client to start compilingletters of recommendation, support, testimonials, and endorsements will startthe process of being able to improve the client’s chances at keeping his or herlicense.• Check-in with an Administrative Law Attorney. You can look up whether thealleged crime is substantially related and the disciplinary guidelines on your own.However, just checking-in with an experienced administrative law attorney mightbe worthwhile. You can double-check on items and bounce ideas off from himor her.