OAH Declines to Issue Blanket Continuance, Forces Virtual Hearings Concerning License Discipline
Updated: Apr 19, 2020
OAH re-writing and diminishing minimum due process rights for licensees in the wake of the coronavirus pandemic
After being somewhat consistent with the California court system with implementing across the Board continuances for all matters, other than pre-hearing and settlement conferences, through April 14, 2020, the Office of Administrative Hearings announced yesterday that it would not be reopening its locations for live hearings BUT would continue with all of its presently scheduled matters. This includes informal and formal hearings for all license types. In so doing, it forces all such disciplinary hearings into a virtual or telephonic format.
Specifically, on April 15, 2020, the General Jurisdiction of the Office of Administrative Hearings posted the following message:
Absent extraordinary circumstances, until further notice, all hearing rooms at OAH facilities are closed and no in-person hearings will take place unless specifically ordered by OAH.
Absent further order or notice from OAH, all presently scheduled hearings, pre-hearing conferences, settlement conferences, mediations, and other calendared events will remain on calendar.
OAH will implement technology, when possible, to permit hearings, pre-hearing conferences, settlement conferences, and mediations to be conducted by telephone or by video conference. Any party may file a request with OAH to convert a currently calendared event to telephone or video conference. OAH encourages the parties to meet and confer and attempt to stipulate to telephone or video conference events, and to notify OAH. OAH will notify parties in writing that a scheduled event will proceed by telephone or video conference.
Hearings and other events may be held in-person if: (1) an Administrative Law Judge determines there is a critical need for an in-person event; and (2) the proceeding can be conducted while providing sufficient social distancing and other public health protections to comply with state and local government public health guidelines.
This decision to proceed virtually across the board is astounding if not appalling. The matters it impacts involves individuals' livelihoods and the ability of business enterprises to continue its operations. Many of these individuals and businesses are those on the front lines of fighting the coronavirus pandemic, or providing essential services to California to support 3/4 of its population sheltering in place. Just the fact that they are going to be called off-the-line to have to defend themselves is ridiculous.
But double down, and force them to do so virtually or telephonically? That is a frustration of their fundamental due process right to "meaningfully respond" to the accusation against them. For example, instead of having the opportunity to confront the evidence and accusers in person, in a formal hearing setting, these individuals and businesses will be reliant on a clear telephone line or video conference live stream. And then they will have to try to convey contrition or confront their accusers by casting doubt on the credibility, consistency, or confidence in a witness or expert. Doing so in person is difficult enough--forcing to do so through a telephone line extinguishes a lot of that ability.
Also, how are witnesses being handled? For a telephonic hearing, who is to say an unscrupulous witness won't have prepared, written remarks when testifying, or when coupled with an equally unscrupulous attorney, written responses prepared for him or her to use in anticipation of cross-examination?
Finally, this entire “statement” violates existing law. Specifically, Government Code, section 11440.30(b) provides:
(b) The presiding officer may not conduct all or part of a hearing by telephone, television, or other electronic means if a party objects.
Hopefully, the Office of the Governor, Department of General Services, and the Office of Administrative Hearings will come to their senses.