In a sweeping opinion in cases brought by Ralph B. Saltsman and Stephen Warren Solomon of Solomon Saltsman & Jamieson, the California Supreme Court unanimously struck down the practice of attorneys in administrative agency hearings submitting ex parte communications to decision-makers within their agency. The Supreme Court held such communication violated specific prohibitions stated in the Administrative Procedure Act, the statutory manifestation of Due Process of Law.
The Court’s ruling vindicated the rights of all ABC licensees in California and will change how all administrative agencies in California do business, and not just the ABC. There will no longer be secret communications from agency attorney to departmental decision-maker in any adversarial hearing. While the decision was issued in cases prosecuted by the Department of Alcoholic Beverage Control, the decision will impact governmental agencies across the state, including other state agencies as well as municipal and county governments.
The Court followed Saltsman’s argument before the court and held: “[A] prosecutor cannot communicate off the record with the agency decision maker or the decision maker’s advisors about the substance of the case. But the one contact that is forbidden is the one contact that occurred here.”
In the cases before the Court, Administrative Law Judges after hearing in written proposed decisions, dismissed disciplinary proceedings brought against ABC licensees. Those proposed decisions were rejected, and the Department imposed suspensions nevertheless. In each instance written ex parte documents were submitted following the hearing by the prosecutor to the Department’s Chief Counsel who acted as decision-maker. The lawfim argued and the Court determined that this and any secret communication from prosecutor to decision-maker was unlawful and unconstitutional.
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