William Jefferson & Co., Inc. v. Board of Assessment and Appeal, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, KIM MCLANE WARDLAW and JOHN A. MENDEZ) AFFIRMED. Judge: BBF Authoring, FILED AND ENTERED JUDGMENT. [8303251]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM JEFFERSON & CO., INC.,
Plaintiff-Appellant,
v.
BOARD OF ASSESSMENT AND APPEALS
NO. 3 FOR ORANGE COUNTY and
STATE OF CALIFORNIA,
Defendants-Appellees.

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
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No. 11-55223
D.C. No.
8:09-cv-00849DOC-RNB
OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
June 8, 2012—Pasadena, California
Filed August 29, 2012
Before: Betty B. Fletcher and Kim McLane Wardlaw,
Circuit Judges, and John A. Mendez, District Judge.*
Opinion by Judge B. Fletcher

*The Honorable John A. Mendez, District Judge for the U.S. District
Court for the Eastern District of California, sitting by designation.

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COUNSEL
William A. Kent, Esq. (argued), Irvine, California, for
plaintiff-appellant William Jefferson & Co., Inc.
William L. Haluck (argued) and Ashley N. Coleman, Koeller,
Nebeker, Carlson & Haluck, LLP, Irvine, California, for
defendant-appellee Assessment Appeals Board for Orange
County.

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OPINION
B. FLETCHER, Circuit Judge:
William Jefferson & Co., Inc. (“William Jefferson”) lost a
state administrative appeal in which William Jefferson challenged the Orange County Tax Assessor’s (“Assessor”) valuation of a parcel of real property. William Jefferson then filed
suit in federal district court, alleging that its procedural due
process rights were violated in the course of the administrative appeal hearing. We affirm the district court’s conclusion
that the state administrative appeal did not deny William Jefferson procedural due process. In a separate memorandum
disposition filed concurrently with this opinion, we affirm the
lower court’s grant of the agency’s motion for a protective
order and its denial of class certification.
I
William Jefferson owns a parcel of real property located in
Orange County, California. William Jefferson disputed the
Assessor’s valuation of that property and assessment of state
property taxes. William Jefferson appealed the Assessor’s
determination to the Assessment Appeals Board for Orange
County (“Board”). The Board denied, on statute of limitations
grounds, William Jefferson’s administrative appeal. The merits of the Board’s decision are not relevant here.
The Assessor was represented at the administrative hearing
by James C. Harmon. Paula Whaley advised the Board. Both
Harmon and Whaley are attorneys who work for the County
Counsel for Orange County, the county’s public law office.
William Jefferson alleges that because the Board was advised
by one member of the Orange County Counsel’s office, and
the Assessor was represented by another member of that
office, the hearing did not comply with the requirements of
due process. The Orange County Counsel’s “dual representa-

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tion” of the Board and the Assessor is expressly authorized by
California Government Code § 31000.7.
William Jefferson filed suit in federal district court arguing
that the hearing procedures employed by the Board violated
William Jefferson’s procedural due process rights under the
Fourteenth Amendment and seeking relief under 42 U.S.C.
§ 1983. At a brief bench trial, Whaley, Harmon, and the clerk
for the Board testified regarding the procedures that the
Orange County Counsel’s office employed to avoid improper
exchange of information between attorneys who represent the
Board and those who represent the Assessor. Harmon and
Whaley also testified about their conduct with respect to the
William Jefferson case in particular.
The district court issued twenty-three findings of fact. The
district court found that Whaley was a member of the County
Counsel’s “advisory” section, while Harmon was a member
of the “litigation” section. In the William Jefferson case,
Whaley’s duties included reviewing the parties’ briefs to the
Board, attending the hearing, observing the Board’s deliberations, advising the Board on the applicable law, and preparing
the written findings of fact memorializing the Board’s decision. The district court found that Whaley “did not have, and
did not seek to exercise, any discretionary authority in drafting the findings of fact.”
The district court found that “[t]he County Counsel’s office
takes diligent measures to separate the members of its advisory section from the members of its litigation section.” These
include maintaining a separate “doored-off” work space for
members of the advisory section and a locked file cabinet for
all documents relating to advising the Board. Both Whaley
and Harmon had received training on the County Counsel’s
procedures for maintaining an “ethical wall” between the
advisory and litigation sections. The district court found that
due to the County Counsel’s procedures and Whaley’s own
“diligence in observing the office’s ethical rules, [she] had no

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formal or informal contact with Mr. Harmon during the pendency of the [William Jefferson] appeal.”
The district court found that Whaley had never represented
the Assessor and that Harmon played no direct or indirect role
in Whaley’s professional reviews or advancement in the
County Counsel’s office. Whaley and Harmon had mutual
professional respect for each other but “rarely” interacted and
there was no evidence of any shared loyalty that would have
influenced Whaley’s advice to the Board in the William Jefferson case. The district court concluded that “[t]here is simply no evidence that [Harmon] was ever in a position to
influence Ms. Whaley’s advice, if any, to the Board.”
The district court also issued ten conclusions of law. The
district court found that § 31000.7 expressly permits one
member of the County Counsel’s office to advise the Board
in a hearing in which another member represents the Assessor. The district court concluded that this provision was not
unconstitutional on its face because the dual representation it
permits does not necessarily “call[ ] into question the
decision-maker’s impartiality.” The district court also concluded that the statute did not violate due process as applied
in William Jefferson’s case, because there was no evidence
that Whaley’s advice to the Board was improperly influenced
by her professional respect for Harmon. The district court
added that even if Whaley had been so influenced, the Board,
not Whaley, was the decision-maker in William Jefferson’s
case and there was no evidence that it was biased.
The district court entered judgment against William Jefferson and William Jefferson timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II
William Jefferson does not challenge the district court’s
findings of fact. We review de novo the district court’s legal

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conclusion that the Board’s hearing procedures did not violate
William Jefferson’s procedural due process rights. See Singh
v. Holder, 638 F.3d 1264, 1269 (9th Cir. 2011). William Jefferson makes both a facial and an as-applied challenge to California Government Code § 31000.7, the state provision
authorizing the county counsel’s office to represent both the
Board and the Assessor. If William Jefferson’s as-applied
challenge fails, then William Jefferson’s facial challenge necessarily fails as well because there is at least one set of circumstances where application of § 31000.7 does not violate a
taxpayer’s procedural due process rights. See United States v.
Inzunza, 638 F.3d 1006, 1019 (9th Cir. 2011) (a facial challenge to a statute necessarily fails if an as-applied challenge
has failed because the plaintiff must “ ‘establish that no set of
circumstances exists under which the [statute] would be
valid.’ ” (quoting United States v. Salerno, 481 U.S. 739, 745
(1987))).
III
William Jefferson asserts that the dual representation
scheme authorized by § 31000.7 denies taxpayers an unbiased
adjudicator and undermines the appearance of fairness in the
Board’s proceedings. William Jefferson also argues that Whaley’s interactions with the Board were impermissible ex parte
contacts with a decision maker. Finally, William Jefferson
suggests that the Orange County Counsel’s office has a financial stake in the outcome of taxpayer appeals that could influence the advice its attorneys give to the Board. We consider
each of these arguments in turn.
[1] We begin our constitutional analysis with the state statutory provision at issue. Section 31000.7 provides in full:
The same law firm shall not be employed to advise
or represent both the assessor and the county board
of equalization1 on any matters relating to hearings
1

The Orange County Board of Supervisors appoints members of the
Board to serve “as the local board of equalization.”

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before the county board of equalization. This prohibition shall not apply to the county counsel’s office.
Individual representatives of that office may represent the assessor and the county board of equalization, as long as the same individual does not
represent both parties.
Although there is no federal authority directly on point, the
California Court of Appeal has held that § 31000.7 does not
violate procedural due process, so long as the attorney advising the county board is “screened from any inappropriate contact with the advocate [for the assessor].” Howitt v. Superior
Court, 5 Cal. Rptr. 2d 196, 203 (Cal. Ct. App. 1992). The California court’s resolution of a federal constitutional question
is persuasive but is not binding on us. See Davis v. Metro
Prods., Inc., 885 F.2d 515, 519 (9th Cir. 1989).
We turn first to William Jefferson’s argument that having
Whaley advise the Board in the same proceeding where Harmon represented the Assessor undermined the impartiality of
the Board, or the appearance thereof. “It is axiomatic that ‘[a]
fair trial in a fair tribunal is a basic requirement of due process.’ ” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876
(2009) (alteration in original) (quoting In re Murchison, 349
U.S. 133, 136 (1955)). “This applies to administrative agencies which adjudicate as well as to courts.” Withrow v. Larkin,
421 U.S. 35, 46 (1975). Moreover, “justice must satisfy the
appearance of justice.” Marshall v. Jerrico, Inc., 446 U.S.
238, 243 (1980) (quoting Offutt v. United States, 348 U.S. 11,
14 (1954)). Accordingly, due process requires that “a judge
must recuse himself when he has a ‘direct, personal, substantial, pecuniary interest’ in a case.” Caperton, 556 U.S. at 876
(quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)); see also
Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (“[T]he
adjudicator’s pecuniary or personal interest in the outcome of
the proceedings may create an appearance of partiality that
violates due process, even without any showing of actual
bias.”).

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William Jefferson relies heavily on the Supreme Court’s
recent decision in Caperton, which held that due process calls
for an objective inquiry into “whether the average judge in
[the adjudicator’s] position is ‘likely’ to be neutral, or whether
there is an unconstitutional ‘potential for bias.’ ” 556 U.S. at
881. The Court concluded that a state supreme court justice
was required to recuse himself from hearing a case where the
president of the defendant corporation had contributed three
million dollars to the justice’s election campaign. Id. at
884-85. Because William Jefferson does not allege that the
Board members had a direct personal or pecuniary interest in
the outcome of its appeal, the Court’s Caperton analysis is of
limited use here.
Withrow v. Larkin is the Supreme Court authority most relevant to resolving William Jefferson’s due process challenge.
Larkin was a doctor licensed by the Wisconsin Examining
Board. Withrow, 421 U.S. at 38. The Examining Board sent
Larkin a hearing notice and informed him that on the basis of
the evidence presented at the hearing, it would determine
whether he had violated state licensing statutes, whether he
should be warned or reprimanded, and whether to institute an
action to revoke his license or a criminal action against him.
Id. at 39. Larkin filed suit in federal district court, asserting
that this combination of investigative and adjudicative functions within the Examining Board denied him procedural due
process. Id. at 41-42. The three-judge district court agreed
with Larkin that permitting the Examining Board to suspend
his license “at its own contested hearing on charges evolving
from its own investigation would constitute a denial to
[Larkin] of his rights to procedural due process” and enjoined
the Examining Board from proceeding against Larkin. Id. at
42. The district court found that the state statute authorizing
this regulatory scheme was unconstitutional. Id.
[2] The Supreme Court reversed. First, the Court explained
that Larkin had to “overcome a presumption of honesty and
integrity in those serving as adjudicators” and show that “con-

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ferring investigative and adjudicative powers on the same
individuals poses such a risk of actual bias or prejudgment”
that due process forbids the practice. Id. at 47. The Court held
that the mere fact that investigative and adjudicative powers
are combined in a state administrative agency, without more,
did not violate due process. Id. at 48-52. The Court cautioned,
however, that federal courts must “be alert to the possibilities
of bias that may lurk in the way particular procedures actually
work in practice.” Id. at 54; see also id. at 58.
William Jefferson argues that the Board’s procedures created the appearance of unfairness. In Withrow, the Court held
that the same members of the state’s Examining Board could
investigate Larkin and adjudicate claims arising from that
investigation without running afoul of due process. Id. at 58.
The Withrow facts are not directly analogous to the facts
before us because the asserted impermissible overlap there
was between investigative and adjudicative functions. Here
the asserted overlap is between prosecutorial and adjudicative
functions, which potentially raises a greater concern about
bias. The problem for William Jefferson is that here the Board
acted only as an adjudicator. William Jefferson makes no allegation that the Board itself was involved in valuing or defending the Assessor’s valuation of the property. It is true that
Harmon, the prosecutor, worked in the same public law office
as Whaley, the Board’s advisor, but they performed different
functions and were carefully screened from each other. The
prosecutorial and adjudicative functions in William Jefferson’s assessment appeal were kept much further apart than the
investigative and adjudicative functions in Withrow, where
the same individuals performed both roles.
We rejected an argument similar to William Jefferson’s in
United States v. Oregon, 44 F.3d 758 (9th Cir. 1994). There,
the Klamath Tribe argued that the State of Oregon’s administrative proceedings for determining water rights denied the
Tribe an adjudication by a fair tribunal. Id. at 771. The Oregon Department of Justice, which provided legal advice to the

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administrative adjudicator, had previously argued against the
existence of treaty rights that were the basis for the Tribe’s
claim to water rights. Id. at 771-72. We concluded that the
Tribe failed to show how the Oregon Department of Justice’s
“prior hostility to certain Treaty rights” could affect the agency’s subsequent determination of water rights or the reviewing state court’s decision whether to enforce that
determination. Id. at 772. Our precedent therefore suggests
that even if there were some evidence that Whaley was biased
in favor of the Assessor, which there is not, that evidence
might not be sufficient to conclude that the adjudicating body
—the Board itself—was biased.
[3] In our case, the district court found that the Orange
County Counsel’s office meticulously followed screening procedures to prevent any improper exchange of information
between attorneys advising the Board and attorneys representing the Assessor. This finding is unchallenged. In addition,
the Board members are presumed to discharge their adjudicative responsibilities with honesty and integrity. See Withrow,
421 U.S. at 47. Under Withrow, the dual representation system authorized by § 31000.7, on its own, is not sufficient to
overcome that presumption. We conclude that the Orange
County Counsel’s office screening procedures were sufficient
to ensure that William Jefferson’s case was heard by an
impartial adjudicator.
[4] William Jefferson also argues that Whaley’s discussions with the Board were impermissible ex parte contacts. In
the absence of a compelling justification, “ex parte communication will not be tolerated.” Guenther v. CIR, 889 F.2d 882,
884 (9th Cir. 1989). Ex parte contacts, however, are contacts
between the adjudicator and an interested party, of which the
other party is unaware. See Black’s Law Dictionary 657 (9th
ed. 2009); Camero v. United States, 375 F.2d 777, 781 (Ct.
Cl. 1967) (“It is difficult to imagine a more serious incursion
on fairness than to permit the representative of one of the parties to privately communicate his recommendation to the deci-

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sion makers.”) (emphasis added). Whaley did not represent
any party to William Jefferson’s appeal, she was the Board’s
legal advisor. As a result, her communications with the Board
were not ex parte. The cases William Jefferson cites for the
proposition that ex parte communications may violate procedural due process are therefore inapposite.2
Finally, William Jefferson argues that the Orange County
Counsel’s office has a financial incentive to advise the Board
to rule against taxpayers because a portion of the fees that the
Board collects for written findings of fact are paid to the
County Counsel’s office. The district court did not make any
findings of fact on this issue but Whaley and the Board’s
clerk testified that the Orange County Counsel’s office
receives approximately two-thirds of the fees collected by the
Board when a taxpayer requests written findings of fact. This
fact does little to help William Jefferson’s case. The Board
prepares written findings of fact only when a taxpayer
requests them and pays the required fee, which the party does
prior to commencement of the hearing. William Jefferson has
not shown that there is anything that Whaley, or any other
member of the County Counsel’s office, can do to encourage
this request. In addition, the fees are collected and distributed
to the County Counsel’s office for the attorney-advisor’s
work, regardless of which party prevails before the Board.
2

Many of the cases that William Jefferson relies on analyze statutory,
rather than constitutional, standards for determining whether particular ex
parte contacts with administrators were impermissible. See, e.g., Gonzales
v. United States, 348 U.S. 407, 411-12 (1955) (evaluating under the Universal Military Training and Service Act a conscientious objector’s challenge to procedures employed by the Department of Justice Appeal
Board); Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d
1534, 1539 (9th Cir. 1993) (analyzing whether ex parte contacts between
White House staffers and a federal agency violated the Administrative
Procedure Act); Grolier Inc. v. FTC, 615 F.2d 1215, 1217 (9th Cir. 1980)
(analyzing whether an ALJ was disqualified from a particular case under
the Administrative Procedure Act and declining to reach a due process
challenge).

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Whaley testified that her salary is in no way tied to the substance of her advice to the Board and her testimony was not
rebutted. William Jefferson does not explain how the fact that
the Orange County Counsel’s office is paid for the time its
employees spend preparing written findings of fact for the
Board has any influence on the attorney advising the Board or
on the Board itself.
[5] We hold that § 31000.7, which permitted Whaley to
advise the Board in the same proceeding where her colleague
—also from the Orange County Counsel’s office—
represented the Assessor, does not violate due process as
applied in this case. As long as the county counsel’s office
maintains an ethical wall that prevents attorneys representing
the Assessor from supervising attorneys who advise the Board
or sharing case information with them, the county counsel’s
dual representation does not undermine the Board’s impartiality.
AFFIRMED.