KLINE, P. J., Dissenting. Under the procedure we review in this case an “appointing authority,” or employer, that wishes to discharge a civil servant completely controls the selection of the hearing officer who finally determines whether the proposed discharge will be effectuated. If this were not enough to skew the process against employees, the pecuniary conflict of interest inherent in this process certainly does so. Because their income depends upon the number of cases they hear, hearing officers have an economic incentive to rule in favor of the employers who provide them remunerative work.
Justice Haerle’s statement that this selection process “does not sustain even an ‘appearance of bias’ ” (lead opn., ante, at p. 776) is incomprehensibly blind to what I consider an obvious reality. My conclusion that appellant and other civil servants are denied due process of law is not, as Justice Haerle says, the product of a “regrettable” exercise in “judicial activism” (lead opn., ante, at p. 777) but of respect for the Constitution, as that document has been unmistakably construed by the courts of this state and nation, in opinions the majority ignores or distorts.
As will be seen, the majority has not only unjustifiably refused to follow the principle articulated in Teachers v. Hudson (1986) 475 U.S. 292 [89 L.Ed.2d 232, 106 S.Ct. 1066] (Chicago Teachers Union), but has so constricted the doctrine of Tumey v. Ohio (1927) 273 U.S. 510 [71 L.Ed. 749, 47 S.Ct. 437, 50 A.L.R. 1243], as to render that seminal case and its progeny virtually meaningless. By distorting the law, the majority restricts the reach of the due process clause with respect to an increasingly significant class of cases. If permitted to stand, the lead opinion will require the courts of this state to blind themselves to the conflict of interest created by the pecuniary [780]interests of the growing number of independent arbitrators whose income depends upon the number of cases they are selected to hear.
As will also be seen, the constitutional issue was adequately litigated below. The claim that the hearing officer had a pecuniary conflict of interest was never waived, the conflict appears on the face of the challenged rule, and is in any case not crucial to appellant’s constitutional claim. I therefore disagree with Justice Phelan’s view that we should avoid the important question this case presents.
I.
The majority’s analysis rests on the contentions that respondent employer did not have an “unrestricted choice” of hearing officers; that, in any event, appellant had the right to challenge the competence of the hearing officer prior to the hearing; and that by failing to make such a challenge he waived the right to do so now. These contentions do not stand up to scrutiny.
Under the San Francisco civil service rules, the employer’s choice of hearing officer is considerably less restricted than the “unrestricted” choice condemned in Chicago Teachers Union.
First of all, there is no meaningful restriction on the size of the universe of potential hearing officers from which the appointing authority must choose. Subdivision C of San Francisco Civil Service Commission rule 6, section 6.06 (Rule 6) permits the selection to be made not just “[fjrom a list of qualified hearing officers certified by the Civil Service Commission,” but also from organizations “such as” the American Arbitration Association. The appointing authority may therefore select individuals associated with a broad range of public agencies and private organizations providing dispute resolution services. Hundreds if not thousands of people inhabit this capacious universe, and the number appears to be rapidly increasing.1
Pointing out that the hearing officer in this case was chosen from the civil service commission’s list, the majority describes the various criteria that must be satisfied in order for a hearing officer’s name to be placed on that [781]list, suggesting that such an elaborate process “cannot reasonably be characterized as granting the City an ‘unrestricted’ selection.” (Lead opn., ante, at p. 769.) The due process deprivation cannot, however, be cured by the manner in which an employer exercises his or her unilateral right to select a hearing officer, because the constitutional problem lies in the mere existence of such total control over the decisionmaking process by an interested party.
Respondent’s claim that employees can challenge the hearing officer selected by the appointing officer is also inaccurate, and for several reasons. First, a challenge may be made only on the basis of a showing of actual bias.2 Unlike employers, who are regularly involved in the administrative process, individual civil servants are far less likely to be aware of the predilections of any particular hearing officer. Furthermore, Rule 6.06 discourages employees from challenging the hearing officer selected by the employer by providing that they may have to bear the costs such a challenge may entail.3 Finally, the employer need not defer to any challenge an employee may have the information to justify and the nerve to make, even if the employee shows actual bias. Subdivision E of Rule 6.06 requires the selection of another hearing officer only “[i]n the event that the appointing authority shall determine that the hearing officer cannot afford the employee a fair hearing.” If the appointing authority, which is the employer, does not agree with the employee’s claim of bias, the employer can refuse to select another, and the civil service rules provide for no appeal from the employer’s final determination.
In any event, the signal reason an employee’s theoretical right to challenge the hearing officer selected by the employer is constitutionally irrelevant is that it would not solve the due process problem created by Rule 6 even if it were accepted and the employer selected another hearing officer. The employer remains free to select, and presumably will select, another person believed to be more sympathetic to the employer’s position rather than that of the discharged employee. Nor can a challenge eliminate the hearing officer’s pecuniary conflict of interest. The economic interest of the hearing officer may not be a problem, or as great a problem, where the contending parties jointly select the hearing officer, as is conventionally [782]done.4 Absent the employee’s consent to the hearing officer selected, which the court below refused to require, the process prescribed by Rule 6.06 is inherently incapable of producing the reasonably impartial and uninvolved decisionmaker required by the Charter of the City and County of San Francisco, and by the Constitution. (Titus v. Civil Service Com. (1982) 130 Cal.App.3d 357, 362 [181 Cal.Rptr. 699].) Hearing officers selected pursuant to that rule will necessarily have an interest in the outcome of the cases they decide, which cannot be reconciled with due process of law. (In re Murchison (1955) 349 U.S. 133, 136 [99 L.Ed. 942, 946, 75 S.Ct. 623].)
The fact that an employee fails to make an objection that would not solve the asserted constitutional violation even if it were sustained cannot preclude the employee from raising the issue on appeal. Barnes v. Personnel Department (1978) 87 Cal.App.3d 502 [151 Cal.Rptr. 94], which the majority relies on for the proposition that appellant’s failure to make such a quixotic objection is terminal, is inapposite, as the objection in that case, if sustained, would have solved the asserted deprivation of due process. Furthermore, because the employee in Barnes could be terminated without cause, his failure to timely object to the hearing officer was really beside the point.
II.
One of the chief flaws in the majority opinion is its fundamental misconception of the issue. The claim in this case is not that Hearing Officer Wharton has an actual bias against employees generally or appellant in particular, or that the appearance of bias is created by something unique to Mr. Wharton. The claim in this case, which differentiates it from most of the [783]cases the majority relies upon, is that the danger of bias is inherent in the prescribed selection process.
While Chicago Teachers Union, supra, 475 U.S. 292 is not the only Supreme Court case bearing on the issues in this case, it is the right place to begin the constitutional analysis. The union in that case was the exclusive bargaining agent for teachers, of whom 95 percent were members. Until 1982, the union’s collective bargaining costs were met by members’ dues, and nonmembers received the benefits of the union’s representation without making any contribution. In order to solve this “free rider” problem, the union and the board of education entered into an agreement requiring the board to deduct “proportionate share payments” from nonmembers’ paychecks. The union established a three-step procedure for considering nonmembers’ objections to the deductions. This procedure is best described in that portion of the opinion of the Seventh Circuit referred to by the Supreme Court: “an objecting nonunion member has 30 days ... to file an objection with the union. The union’s executive committee reviews the objection. If it rejects it, the objector has 30 days to appeal to the committee, and if he appeals in time he is entitled to a personal hearing. If his objection is turned down on the basis of that hearing, he can ask for arbitration. The union’s president picks the arbitrator from a list of arbitrators accredited by the state board of education; the union pays the arbitrator’s fee; and the arbitrator’s decision is final.” (Hudson v. Chicago Teachers Union Local No. 1 (7th Cir. 1984) 743 F.2d 1187, 1194.)
Objecting nonmembers brought suit in federal district court, challenging the union’s procedure on the ground, among others, that it denied their Fourteenth Amendment due process rights. The district court rejected the challenges and upheld the procedure. The Seventh Circuit reversed.
Circuit Judge Posner pointed out that the arbitrator was not independent but was picked by the union. “It is true that he is picked from a list which, we are told, contains about 50 names, thus confining the union’s choice somewhat. But even if the Illinois law imposes on the union the identical duty of fair representation that the union would have if it were subject to the Railway Labor Act or the National Labor Relations Act, the union’s relationship to dissenting members of the bargaining unit would, as a realistic matter, contain a sufficient residue of adverseness to raise serious objections to giving the union a unilateral choice of arbitrator .... There are 15 federal district judges in active service in the Northern District of Illinois, all unimpeachably accredited; and yet the union would not try to defend a procedure that let it (or the dissenters!) pick the judge to preside in this case. [Citations.]” (473 F.2d at p. 1195.)
[784]In the present case, as noted, the employer may select from an almost unrestricted universe of hearing officers affiliated with virtually any public or private dispute resolution organization (including corporate entities designed to profit the organization as well as participating hearing officers) and is empowered to reject a for-cause challenge to the officer he or she selects, even assuming the employee is willing to bear the additional costs a challenge may entail. The employer’s relationship to an employee targeted for discharge certainly contains a “residue of adverseness” sufficient to make the employer’s total control over the selection process a due process problem. But the employer’s unilateral power to select the hearing officer is by no means the only source of the constitutional problem.
Judge Posner noted that the situation in Chicago Teachers Union, as here, was even more “troublesome” because “[t]he arbitrator, unlike a federal judge, is not paid a salary that is independent of the number of cases he presides over, or of the goodwill of a litigant. The arbitrator is paid for each arbitration, and this gives him a financial interest in deciding cases favorably to the union—which hires him, and incidentally which pays him. ‘[N]o man is permitted to try cases where he has an interest in the outcome.’ ” (Hudson v. Chicago Teachers Union Local No. 1, supra, 743 F.2d at p. 1195, quoting In re Murchison, supra, 349 U.S. 133, 136 [99 L.Ed. 942, 946].) The Seventh Circuit’s assessment of the procedure and determination that it violated the due process clause was affirmed by the Supreme Court. (Chicago Teachers Union, supra, 475 U.S. 292.) Although the Supreme Court opinion focuses most heavily on a First Amendment issue not present in the instant case, the Court expressly agreed with Judge Posner that “the ‘most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union, which is an interested party, since it is the recipient of the agency fees paid by the dissenting employees.’ ” (475 U.S. at p. 308 [89 L.Ed.2d at p. 248], quoting Hudson v. Chicago Teachers Local No. 1, supra, 743 F.2d at pp. 1194-1195.) The Supreme Court observed that review of the determinations of union officials by an arbitrator selected by the union was inadequate “because the selection represents the Union’s unrestricted choice from the state list.” (Ibid.)
Though it is controlled by an employer rather than a labor union, the procedure challenged in the present case is materially indistinguishable from that condemned in Chicago Teachers. The hearing officer who will determine the propriety of the employee discharge at issue cannot be blind to the interest in that issue of the party which selected him or her and pays the fee, [785]and has the ability to do so again in future cases.5 And it is not only the interests of the particular employer involved in a given case that may affect a hearing officer’s attitude. A hearing officer seen by other employers as unduly indulgent of the interests of employees they wish to discharge, runs the risk he or she will not be selected by them either, or will not be selected as frequently as might otherwise be the case, and will suffer the adverse economic consequences. Therefore, regardless whether they act on it, hearing officers selected pursuant to Rule 6 have a financial interest in rejecting the claims of employees and upholding those of appointing officers. In contrast, the hearing officer has no incentive to “accord equal favor to one-time customers,” such as appellant. (Kim, Rent-A-Judges and the Cost of Selling Justice, supra, 44 Duke L.J. 166, 177-178, fns. omitted.) Finally, like the arbitrator in Chicago Teachers Union, the decision of the hearing officer selected by the party that controls the process is “final.” (S.F. Charter, § 8.341.)6
The majority claims Chicago Teachers Union is inapposite for four reasons. Not one of them is persuasive.
The first reason is that the present case does not involve the First Amendment. (Lead opn., ante, at p. 773.) This is almost like saying that the rule announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], applies only to criminal defendants charged with kidnapping and rape, as those were the only crimes for which Mr. Miranda was tried. The discussion in Chicago Teachers Union of due process requirements is unrelated to the First Amendment issue also presented in that case. It is enough that the right to continued employment at stake in this case is a property interest which, like rights arising under the First Amendment, cannot be abridged without due process of law. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206, 208 [124 Cal.Rptr. 14, 539 P.2d 774]; Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736 [150 Cal.Rptr. 475, 586 P.2d 956]; Walker v. City of Berkeley (9th Cir. 1991) 951 F.2d 182, 183.)
The second basis upon which the majority purports to distinguish Chicago Teachers Union is that the choice of hearing officer in this case was not [786]“unrestricted,” and the employee can assertedly challenge the one selected by the appointing authority. As already explained, however, there are not just “about 50” persons an appointing authority may select from, as in Chicago Teachers Union, but many hundreds if not thousands of individuals eligible to be selected under the civil service rules (most or at least many of whom are economically dependent upon such business); challenges are discouraged by the additional costs that may be imposed on employees who object to the hearing officer selected; and if a challenge is made the employer can unilaterally finally reject it, no matter how compelling the showing of bias may be. Finally, and most significantly, a challenge would be useless even if it was allowed by the employer, as it would simply result in the selection by the employer of another hearing officer felt to be more sympathetic to management than to employees, who would have precisely the same pecuniary conflict of interest as the one removed.
The third basis upon which Justice Haerle unsuccessfully endeavors to distinguish Chicago Teachers Union is that “although the Court of Appeals viewed the payment of the arbitrator by one party as establishing bias, the Supreme Court neither discussed nor affirmed that view.” (Lead opn., ante, at p. 775.) As previously explained, the Supreme Court refrained from discussing the pecuniary conflict of interest not because it disagreed with the Seventh Circuit on that issue, but merely because it did not need to reach it. The Supreme Court affirmed the Seventh Circuit without providing any indication of disagreement with this aspect of the intermediate appellate court’s view on this matter.7 The Seventh Circuit’s analysis of the pecuniary conflict of interest not only makes eminent sense but its opinion remains [787]authoritative. In any event, the selection process at issue in this case would be unconstitutional even if, as is not the case, the Supreme Court disagreed with the Seventh Circuit’s analysis of the pecuniary conflict of interest. The pecuniary conflict of interest does not create but merely aggravates the due process violation. As appellant has consistently maintained, the Supreme Court’s analysis and holding in Chicago Teachers Union would require us to rule in his favor even if a hearing officer’s income did not depend on the number of cases he or she was selected to hear and there was no pecuniary conflict of interest. I cannot imagine, for example, that my colleagues would defend the constitutionality of a rule or statute permitting an interested party in cases such as this (or in any case) to decide which of the 28 superior court judges in San Francisco will preside over the proceedings and decide the matter, even though all are competent to do so and facially unbiased, their judgments are subject to review, and their incomes are not determined by the number of cases they hear. Unilateral selection of the hearing officer by a party to a dispute such as this, in which an important right is at stake, is no less constitutionally objectionable.
The majority seems unwilling to accept the proposition that he who pays the piper can call the tune, merely because the Supreme Court felt it unnecessary to explicitly say so in Chicago Teachers Union. But the Supreme Court has made that very point in contexts as germane to the present case as Chicago Teachers Union.
The seminal case regarding pecuniary conflicts of interest is Tumey v. Ohio, supra, 273 U.S. 510, which, as will be seen, has been applied in an increasingly expansive manner, so as to embrace administrative proceedings of the sort we confront in this case. In Tumey a mayor-judge was paid, in addition to his regular salary, a certain sum in each case in which he found the defendant guilty of a liquor law violation. The court found this a denial of due process: “The mayor received for his fees and costs in the present case $12, and from such costs under the Prohibition Act for seven months he made about $100 a month, in addition to his salary. We cannot regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest. [ID . . . There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it, but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” (Id., at pp. 531-532 [89 L.Ed.2d at p. 758], italics added.)
[788]The “possible temptation” rule announced in Tumey was first extended in Ward v. Village of Monroeville (1972) 409 U.S. 57 [34 L.Ed.2d 267, 93 S.Ct. 80], where the mayor-judge had no direct pecuniary interest, but the fines he levied helped defray the costs of running the village government. A year later the doctrine was applied to a civil administrative proceeding in Gibson v. Berryhill (1973) 411 U.S. 564 [36 L.Ed.2d 488, 93 S.Ct. 1689], where the indirect economic self-interest of members of a state board of optometry was deemed to offend the due process clause. As stated by the Supreme Court in Berryhill, “[i]t is sufficiently clear from our cases that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes. Tumey v. Ohio, 273 U.S. 510 [71 L.Ed. 749, 47 S.Ct. 437, 50 A.L.R. 1243] (1927). And Ward v. Village of Monroeville, 409 U.S. 57 [34 L.Ed.2d 267, 93 S.Ct. 80] (1972) indicates that the financial stake need not be as direct or positive as it appeared to be in Tumey. It has also come to be the prevailing view that ‘[m]ost of the law concerning disqualification because of interest applies with equal force to . . . administrative adjudicators.’ K. Davis, Administrative Law Text § 12.04, p. 250 (1972), and cases cited.” (Gibson v. Berryhill, supra, 411 U.S. at p. 579 [36 L.Ed.2d at p. 500].)
California courts have applied the Tumey doctrine in administrative proceedings comparable to that before us. (See, e.g., Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648 [163 Cal.Rptr. 831]; American Motors Sales Corp. v. New Motor Vehicle Bd. (1977) 69 Cal.App.3d 983 [138 Cal.Rptr. 594].)
The fact that the income of hearing officers depends on the number of cases they hear and therefore the favor of the employers who select them presents a pecuniary conflict of interest at least as clear as those condemned in Tumey and its progeny. One such case that is particularly on point, because it discusses the manner in which a hearing officer’s interest in securing future judicial business creates a pecuniary conflict, is the decision of the highest court of West Virginia in State ex rel. Shrewsbury v. Poteet (1974) 157 W.Va. 540 [202 S.E.2d 628, 72 A.L.R.3d 368]. There a statutory scheme permitted creditor-plaintiffs a county-wide choice as to judge and provided that the judge selected could charge a $5 fee for his or her services. The court noted that under this fee system “the income of a Justice of the Peace is determined by the number of cases instituted in his court. It necessarily follows that the more cases he handles the more $5.00 fees he will receive.” (Id., at p. 631.) Citing Tumey, the court noted that in order to make the statute constitutionally invalid it was not necessary to show actual abuse by a particular justice of the peace. (Id., at p. 632) “Although this case is civil rather than criminal, the principle expressed in Tumey applies. [The West Virginia statute], wherein it provides that a Justice of the Peace shall [789]charge and collect a five dollar fee, not only permits but in fact encourages one to favor those who will bring him ‘business.’ The incentive to increase the number of five dollar fees is built into the statute.” (Ibid.) Accordingly, without finding any actual bias, the court held that, because it “creates a pecuniary interest in such judicial officers,” the statutory scheme violated the Fourteenth Amendment to the United States Constitution as well as the counterpart provision of the West Virginia Constitution.8
Justice Raerle consigns his discussion of Tumey to a footnote, in which he suggests that the decision in Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813 [89 L.Ed.2d 823, 106 S.Ct. 1580] has narrowed the Tumey doctrine so as to render it inapplicable where, as he claims is the case here, the interest is “speculative and contingent” or “remote and insubstantial.” (Lead opn., ante, at p. 775, fn. 10.) This tortured reading of Aetna, never before advanced by any American court, just cannot be squared with the language of the opinion itself. Actually, Aetna defines the rule in Tumey in such a way as to confirm its application to this case.
Aetna involved a due process challenge to a five-to-four decision of the Alabama Supreme Court which sustained a multimillion dollar punitive damages award against an insurance company for bad faith refusal to pay a valid claim. At the time of the Alabama decision, Justice Embry, the author of the majority opinion, was a party to a class action against Blue Cross posing virtually identical issues. Aetna claimed Justice Embry should have disqualified himself and that his participation violated its rights under the due process clause. The Supreme Court agreed. Noting “that under the Due Process Clause no judge ‘can be a judge in his own case [or be] permitted to try cases where he has an interest in the outcome. [Citation.]’ ” (475 U.S. at p. 822 [89 L.Ed.2d at p. 833], quoting In re Murchison, supra, 349 U.S. 133, 136 [99 L.Ed. 942, 946]) the court reiterated the test set forth in Ward v. Monroeville, supra, 409 U.S. 57, 60 [34 L.Ed.2d 267, 280-271]: a judicial interest is sufficient to disqualify a judge if the “ ‘situation is one “which would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” ’ ” (Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at p. 822 [89 L.Ed.2d at p. 833].)
Justice Raerle rejects the use of the “possible temptation” principle because, as he explains, “Aetna makes clear that ‘possible temptation’ clearly does not include instances where the interest is ‘speculative and contingent.” (Lead opn., ante, at p. 776, fn. 10, quoting Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at p. 826 [89 L.Ed.2d at p. 836].) This statement, [790]which is taken completely out of context, is very misleading. The interest held in Aetna to be too “speculative and contingent” to create a constitutional problem was not that of Justice Embry but of the other Alabama Supreme Court judges who participated in the case, because “nothing in the record even suggested] that these justices had any knowledge of the class action before the court issued a decision on the merits,” and the amount of their individual interests in the victory of the class to which they nominally belonged was infinitesimal. Justice Embry’s situation was very different, however. Not only must he have been fully aware that the outcome of the case before him would affect his economic interests, but the amount of his interest was greater than that of ordinary class members because he sought personal compensatory damages in addition to punitive damages in behalf of the class. (Id.., at p. 824 [89 L.Ed.2d at p. 834].) Hearing officers selected by employers under Rule 6 must be as aware as Justice Embry was of the effect the outcome of the case before them may have on their future income; and their interest is perhaps even greater than that of Justice Embry, whose base judicial income was never at stake.
The significance of Aetna, to which the majority is blind, is its definition of the magnitude of the interest that will suffice to require judicial disqualification under the Tumey rule. According to Justice Haerle, Tumey and Ward v. Monroeville “clearly mean that the ‘possible temptation mentioned occurs when there is a direct, personal, substantial, pecuniary interest’ and that the use of the former language does not enlarge the nature of the prohibited interest.” (Lead opn., ante, at p. 776, fn. 10, italics in original.) Actually, the reverse is true: an interest is “direct, personal, substantial [and ] pecuniary” if it would create a “possible temptation” to be partial to one side.
As the Fifth Circuit has explained, the Supreme Court acknowledged in Aetna that “ ‘what degree or kind of interest is sufficient to disqualify a judge from sitting “cannot be defined with precision” ’ [quoting Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at p. 822 (89 L.Ed.2d at pp. 832-833).]” In order to diminish the imprecision, “the Aetna court adopted as a ‘reasonable formulation’ the inquiry whether the ‘situation is one “which would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” ’ [Citations.] Applying this due process standard to the case before it, the Court concluded that although general allegations of bias and hostility do not rise to a due process violation, the justice’s financial stake in the outcome—regardless whether he was in fact impartial—was ‘direct, personal, substantial [and] pecuniary’ enough to constitute a violation of the Due Process Clause. [Citations.]” (United States v. Couch (5th Cir. 1990) 896 F.2d 78, 81-82.) In short, Aetna posits a “due process standard” that amounts to an objective test: a particular interest [791]is sufficient to constitutionally disqualify an independent adjudicator when it would “tempt” an “average judge” not to decide the matter before him or her impartially, regardless whether the decisionmaker gave in to the temptation. Justice Haerle is not merely unwilling to acknowledge that this is the “due process standard” upon which the Tumey doctrine is based but he invents a different and much higher standard than has ever been applied by the United States Supreme Court or any other court in any relevant case and which guts the due process clause.
III.
The most important, or “key,” reason Justice Haerle refuses to submit to the rationale of Chicago Teachers Union is his conclusion that Judge Posner’s opinion in that case cannot be squared with pertinent California law regarding the due process requirement of an unbiased hearing officer. (Lead opn., ante, at p. 772.) Justice Haerle bases this conclusion on three cases: Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795 [20 Cal.Rptr.2d 903] (review den.); Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781 [171 Cal.Rptr. 590, 623 P.2d 151]; and Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568 [257 Cal.Rptr. 427] (review den.). These cases have little or no bearing on the constitutional issue before us.
Binkley v. City of Long Beach, supra, involved the question whether a city’s police chief, who under the city charter could be removed by the city manager without just cause, had been discharged in compliance with the Public Safety Officers Procedural Bill of Rights. Because he could be removed without cause, the police chief was not constitutionally entitled to a hearing in the first place; he was afforded a hearing for the limited purpose of enabling him to “ ‘establish a formal record of the circumstance surrounding his termination’ ” and thus save face. (16 Cal.App.4th at p. 1809.) The court’s holding that the police chief’s appeal process was not biased, despite the hearing examiner’s appointment by the city manager, must be understood in this light. The court emphasized that, because the city manager was given final decisonmaking authority under the city charter, the right to a fair and impartial tribunal was not violated by permitting the official who makes the initial disciplinary decision to retain the final say in the matter. In the present case the employer does not have final decisionmaking authority to hire and fire civil servants; a civil servant cannot.be discharged without cause and possesses the right to obtain independent review of the employer’s action by an independent hearing officer whose decision, even if it differs from that of the employer, is administratively final. The process whereby the hearing officer is selected, and his or her economic interest in the proceedings, is therefore far more consequential and constitutionally significant than it [792]would be if, as in Binkley, the employee could be terminated without just cause. Furthermore, Binkley involved no claim of a pecuniary conflict of interest. As stated by the court, “[tjhere is nothing to indicate that [the hearing officer] had a personal or financial stake in the matter . . . .” (Id. at p. 1810.)
Burrell v. City of Los Angeles, supra, 209 Cal.App.3d 568, is also very different from this case. In Burrell city employees disciplined by superiors challenged section 112 of the city charter, which limited the ability of the civil service board to reduce the disciplinary penalty by requiring that any reduction in the penalty recommended by the board must be consented to by the same official who originally imposed the discipline. The court upheld the charter provision based on federal cases concluding “that the right to a fair and impartial tribunal is not violated by permitting the official who makes the initial disciplinary decision to have the final say in the matter.” (209 Cal.App.3d at p. 579.) Burrell has nothing to do with this case even apart from the facts that the employers in that case did not have the unilateral ability to select the persons who reviewed their decisions and there was no pecuniary conflict of interest. Unlike section 112 of the Los Angeles Charter, which gives the employer the final say, section 8.341 of the San Francisco Charter provides not only that the hearing officer who independently reviews the appointing authority’s action “may exonerate, suspend or dismiss the accused [employee]” but that, as just noted, “[t\\he finding of the hearing officer shall be final” (Italics added.) By ignoring the constitutional requirements implicated by the type of public proceeding contemplated by section 8.341, the majority has in effect imposed upon San Francisco the different civil service system adopted in Los Angeles, which provides its civil servants lesser protections. If this is to be done it can properly be accomplished only through a vote of the citizens of San Francisco, not by fiat of this court.
Justice Raerle’s view that Andrews v. Agricultural Labor Relations Bd., supra, 28 Cal.3d 781 is “controlling” is curious, because that opinion undermines his analysis. In Andrews agricultural employers sought to disqualify a temporary hearing officer affiliated with a public interest law firm that regularly represented Spanish-sumamed persons and farm workers against agricultural employers. As Justice Raerle correctly explains, the Supreme Court held that the challenge could not succeed because the employer could not show actual bias, as required by a statute (since repealed) then in effect.9 (28 Cal.3d at pp. 792-793.) It is important to realize that Andrews does not involve a claimed defect in the process for selecting [793]hearing officers, but rather the actual or apparent bias of the particular hearing officer chosen. Nor does Andrews involve the state or federal Constitution. The opinion in that case never once mentions the due process clause or any other constitutional principle; the matter was decided entirely on the basis of statutes that bear very peripherally if at all on the constitutional issue presented in this case. Furthermore, although the opinion does state that a showing of actual bias was ordinarily required by a statute then in effect, the Andrews court was careful to carve out an important exception to the actual bias requirement which then prevailed, an exception that clearly describes the present case. “Of course,” Justice Mosk observed, “there are some situations in which the probability or likelihood of the existence of actual bias is so great that disqualification of a judicial officer is required to preserve the integrity of the legal system, even without proof that the judicial officer is actually biased towards a party.” (Id., at p. 793, fn. 5, italics added.) Justice Mosk then cites Tumey v. Ohio, supra, 273 U.S. 510, as an example of such a case “in which a judge was disqualified because of his financial stake in the outcome.”
Justice Haerle endeavors to evade the caveat in Andrews in two ways. First, he suggests there is no pecuniary conflict of interest here because the hearing officer did not have an objectively discernible “financial interest” in a party to the dispute within the meaning of Code of Civil Procedure section 170.5, subdivision (b). But that definition of “financial interest” (which is set forth in the margin below)10 amounts to a showing of actual bias, which, citing Tumey, the Andrews court found unnecessary. Justice Haerle then argues that “[i]n the case before us the record does not sustain even an [794]‘appearance of bias.’ If, as noted earlier, appellant had shown how many cases Hearing Officer Wharton had decided, how many of those were for the San Francisco Airport, and how many rulings were in favor of that employer, an objective person might be able to perceive an appearance of bias.” (Lead opn., ante, at p. 776.) Justice Haerle appears to believe, in other words, that there is no appearance of bias in the absence of a showing of actual bias. This view is as hard to square with the law as it is with logic.
Andrews would have no application to this case even if the Legislature had not rendered it obsolete (see discussion, ante, at fn. 9), because it does not address the constitutional question at issue here (or any federal or state constitutional question).11 The Supreme Court has left no doubt that it is the appearance of bias that counts, regardless whether actual bias can be shown. As stated in Marshall v. Jerrico, Inc. (1979) 446 U.S. 238 [64 L.Ed.2d 182, 100 S.Ct. 1610], “[w]e have employed the [Turney] principle in a variety of settings, demonstrating the powerful and independent constitutional interest in fair adjudicative procedure. Indeed, ‘justice must satisfy the appearance of justice,’ [citation], and this ‘stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,’ [citations].” (Id. at p. 243 [64 L.Ed.2d at pp. 188-189], italics added, quoting Offutt v. United States (1954) 348 U.S. 11, 14 [99 L.Ed. 11, 16, 75 S.Ct. 11] and In re Murchison, supra, 349 U.S. 133, 136 [93 L.Ed. 942, 946]; see also Taylor v. Hughes (1974) 418 U.S. 488 [41 L.Ed.2d 897, 94 S.Ct. 2697].) Indeed, in the service of this high principle the Supreme Court has gone so far as to require the disqualification of a judge who at the time he ruled was not even aware of the circumstances that created the appearance of impropriety, and whose decision could therefore not have been affected. (Liljeberg v. Health Services Acquisition Corp. (1987) 486 U.S. 847 [100 L.Ed.2d 855, 108 S.Ct. 2194].) Indeed, the Supreme Court in that case pointed to its earlier opinion in Aetna as an illustration that judicial concern about the appearance of bias “has constitutional dimensions.” (Id., at p. 865, fn. 12 [100 L.Ed.2d at p. 875].)
[795]Even though “a person aware of the facts might reasonably entertain a doubt that the [hearing officer in this case] would be able to be impartial”— which is among the grounds for judicial disqualification set forth in the Code of Civil Procedure (Code Civ. Proc., § 170.1, subd. (a)(6)(C))—this is not a conventional disqualification case under that statute, because hearing officers typically selected pursuant to the prescribed process would all be at least tempted to resolve doubts in favor of those who hire and pay them and can do so again in the future. Neither the Code of Civil Procedure nor any other state statute contemplates the sort of systemic due process problem presented in this case. It is the concept of justice embedded in the due process clause of the Fourteenth Amendment that protects appellant and other civil servants in San Francisco.
IV.
Justice Phelan concurs in Justice Haerle’s opinion but, unlike him, believes that the pecuniary conflict of interest has been waived and we should not address it because the issue was not adequately raised below.
It is true, as Justice Phelan points out, that appellant did not in the trial court emphasize as much as he could have the economic incentive for hearing officers to favor the employers who select and pay them. The reason he did not do so was the same reason the Supreme Court did not in Chicago Teachers Union think it necessary to comment on the pecuniary conflict of interest spelled out by the Seventh Circuit in that case; the .mere fact that an interested party was permitted to unilaterally select the decisionmaker was sufficient to show a due process violation. The economic interest of the arbitrator in Chicago Teachers Union and the hearing officer here is simply an exacerbation of this threshold problem. Moreover, the remedy appellant sought below, that no hearing officer be employed without his consent, would have solved all the constitutional problems, including the pecuniary conflict of interest, which appellant would be waiving by his consent. Rejecting this request, the superior court found that “the method by which the hearing officer was selected did not violate fundamental notions of due process articulated by Chicago Teachers Union v. Hudson (1986) 475 U.S. 292 [89 L.Ed.2d 232, 106 S.Ct. 1066].” This ruling was erroneous, as I have said, even without the showing of pecuniary conflict of interest appellant could more clearly have made.
Justice Phelan asserts that the waiver rule is appropriate in this case “because factual issues related to the alleged financial conflict of interest were never developed in the trial court” and “we simply do not know the extent of Wharton’s alleged financial conflict of interest.” (Conc. opn., ante, [796]at p. 778.) He is therefore, in effect, adopting Justice Haerle’s erroneous view that a showing of actual bias is necessary.
The undisputed record tells us all we need to know. The San Francisco civil service rules state that the hearing “shall be conducted by a hearing officer under contract to the appointing officer” (Rule 6); that the appointing authority, or employer, may select a hearing officer from virtually any public or private organization that supplies such officers; that the employee may only challenge the employer’s choice on the basis of a showing of actual bias, but such a challenge may expose the employee to an expense he would not otherwise bear, and that, in any case, an employer may reject an employee’s challenge.
As we must assume hearing officers do not provide their services for free, and that they are paid in the manner prescribed by the charter and civil service rules, the precise amount any hearing officer earns, or other information bearing on the extent of his or her conflict of interest need not be shown. As Chief Justice Taft pointed out in Tumey, “. . . it is very clear that the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter which he was to decide,” renders his or her “decision voidable. [Citations.]” (Tumey v. Ohio, supra, 273 U.S. at p. 524 [71 L.Ed.2d at p. 755], italics added.) “There was at the common law the greatest sensitivity] over the existence of any pecuniary interest, however small or infinitesimal, in the justices of the peace.” (Id., at p. 525 [71 L.Ed.2d at p. 755], italics added.) Furthermore, it was not the actual receipt of a fee that created the due process problem in Tumey, but the mere “prospect of receipt or loss of such an emolument” (Id., at p. 532 [71 L.Ed.2d at p. 758]) because it created “a possible temptation to the average man as a judge to forget the burden of proof ... or which might lead him not to hold the balance nice, clear and true” between the parties. (Ibid., italics added) The court was therefore indisposed to treat the possibility of a $12 fee “as a minute, remote, trifling or insignificant interest.” (Ibid.)
In short, it is not important how much Hearing Officer Wharton is paid for his services, or whether he has in the past ruled for or against those who employ and pay him, or what percentage of his income may in the past have derived from selection as a hearing officer to adjudicate civil service cases under Rule 6, and the absence from the record of information such as this does not matter. What matters is whether the interest of the “average” hearing officer in cases arising under Rule 6 would be subject to the “possible temptation” described in Tumey and repeatedly reaffirmed by the Supreme Court. As in Tumey, this temptation does not arise because of anything that may be unique to Hearing Officer Wharton “but was the result [797]of the normal operation of the law and the ordinance.” (273 U.S. at p. 523 [71 L.Ed.2d at p. 754].) Nor can a hearing officer’s interest in increasing his or her future judicial business and income reasonably be considered a “slight” interest, as my colleagues claim. Accordingly, this court knows all it needs to know to appropriately adjudicate the merits of this case.
For the foregoing reasons, I would reverse the judgment.
Appellant’s petition for review by the Supreme Court was denied May 1, 1996. Mosk, J., was of the opinion that the petition should be granted.
See, e.g., Note, Private Justice: How Civil Litigation is Becoming a Private Institution—The Rise of Private Dispute Centers (1994) 23 Sw.U.L.Rev. 621, 626, quoting Breznick, Arbiters Growing Out of Court’s Gridlock (Apr. 27, 1992) Crains’s N.Y. Bus. at page 9 (panelists of American Arbitration Association “handled more than 62,000 cases nationwide last year,” i.e., 1991); Kim, Rent-A-Judges and the Cost of Selling Justice (1994) 44 Duke L.J. 166, 175 (“Over the past decade, the number of retired judges for hire has increased exponentially”).
Subdivision E of Rule 6, section 6.06 states that an employee may challenge the competence of the hearing officer selected by the appointing authority “on the basis that the hearing officer is in some demonstrable manner biased or prejudiced against the employee and that, therefore, the employee will not be afforded a fair hearing.”
Subdivision I of Rule 6, section 6.06 states that “[t]he department bringing charges against an employee shall pay all fees for hearing officers” except costs “incurred as a result of any request of the employee (such as costs occasioned by . . . challenges of [a] hearing officer)” which shall be borne by the employee.”
One commentator believes that not even consent can completely eliminate the problem created by the fact that “referees may be influenced to decide cases in favor of the party more likely to bring cases to them in the future.” (Note, The California Rent-A-Judge Experiment: Constitutional and Policy Considerations of Pay-As-You-Go Courts (1981) 94 Harv. L.Rev. 1592, 1608.) “To a certain extent this problem would be solved by the consent requirement, since no one would consent to a reference if he knew the referee would favor his opponent. As a safeguard, however, consent would only be effective in protecting the integrity of reference proceedings if all parties had perfect knowledge about all referee decisions. Those parties with the greatest experience with reference, however, would have superior knowledge. Similar parties in other contexts have been called ‘repeat players,’ but under the market conditions that prevail in reference, they might better be termed steady customers. Steady customers represent an important asset to any seller and a referee would find it in his self interest to favor those parties where possible. Of course, any favoritism could not be overt, for then the opponents of the steady customers would refuse to consent. But over time, referees could safely give steady customers the benefit of the doubt more often than not. Steady customers would suspect that their status was giving them a small edge, and this would bring them back into reference for future fights. But their opponents, the one-time customers, would not be aware of the subtle systemic bias working against them. They could not therefore make a fully informed choice when they consented to the reference.” (Ibid., fn. omitted.)
Rule 6 expressly provides that “[t]he department bringing charges against an employee shall pay all fees of hearing officers . . . .” (Rule 6, § 6.06, subd. E.)
The majority purports to differentiate the system at issue here from that at issue in Chicago Teachers’ Union on the ground that the administrative system we are reviewing “is followed by court review at the trial and appellate levels.” (Lead opn., ante, at p. 774.) In fact there is no such difference. Judicial review is available in this case, as presumably in Chicago Teachers’ Union, not because it is provided for in the regulatory scheme, but because it is available under codified rules of civil procedure. (Code Civ. Proc., § 1094.5.)
There is only one respect in which the Supreme Court expressed any disagreement with the Court of Appeal, and the Supreme Court’s explanation of that difference dramatizes the absence of any disagreement with the portion of the Court of Appeal’s opinion pertaining to the pecuniary conflict of interest. After stating that review by a union-selected arbitrator “is also inadequate because the selection represents the Union’s unrestricted choice from the state list” (475 U.S. at p. 308 [89 L.Ed.2d at p. 248]), the court went on to say, by way of footnote, “We do not agree, however, with the Seventh Circuit that a full-dress administrative hearing, with evidentiary safeguards, is part of the ‘constitutional minimum.’ Indeed, we think that an expeditious arbitration might satisfy the requirement of a reasonably prompt decision by an impartial decisionmaker, so long as the arbitrator’s selection did not represent the Union’s unrestricted choice. In contrast to the Union’s procedure here, selection of an arbitrator frequently does not represent one party’s choice from a list of state-approved arbitrators. [Citations.]” (475 U.S. at p. 308, fn. 21 [89 L.Ed.2d at p. 248], italics added.) This statement shows, if any showing be needed, that the Supreme Court knows how to express disagreement with any part of a lower court’s opinion whose judgment it affirms. Furthermore, the substance of the statement indicates why the Supreme Court did not address the pecuniary conflict that had been emphasized by the Court of Appeal. Clearly, the union’s unilateral power to select the hearing officer was all that was needed to condemn the process; discussion of the pecuniary conflict of interest was not only unnecessary but might dilute the significance of the threshold factor the court found dispositive.
A similar result was reached by the South Carolina Supreme Court in State ex rel. McLeod v. Crowe (1978) 272 S.C. 41 [249 S.E.2d 772].
As this court recently pointed out in Catchpole v. Brannon (1995) 36 Cal.App.4th 237 [42 Cal.Rptr.2d 440] (review den.), California cases—and we specifically referred to Andrews— [793]which stand for the proposition that bias and prejudice are never implied and must be established by clear averments, were “decided under the prior statute governing judicial disqualification—Code of Civil Procedure former section 170, subdivision (a)(5)—which had been construed to require a showing of bias in fact. (See Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792-793 . . . .) That statute was, however, replaced by section 170.1, subdivision (a)(6)(C) in 1984. The new statute altered the requirement by making the disqualification standard ‘ “fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man [or woman] would entertain doubts concerning the judge’s impartiality, disqualification is mandated. ‘To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person.’ [Citation.]” ’ ” (Catchpole, supra, 36 Cal.App.4th at pp. 245-246, fn. omitted, citing, inter alia, In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1505 [15 Cal.Rptr.2d 70] (conc. opn. of Moore, J.), quoting United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104-105 [216 Cal.Rptr. 4], review den.)
I.e., “ownership of more than 1 percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value in excess of one thousand five hundred dollars ($1500), or a relationship as a director, advisor or other active participant in the affairs of a party . . . .” (Code, Civ. Proc. § 170.5, subd. (b).)
The statement in Burrell v. City of Los Angeles, supra, 209 Cal.App.3d 568 that the Supreme Court in Andrews was construing “the state Constitution’s due process guaranty of a fair and impartial administrative decisionmaker” (Id., at p. 582), is simply wrong. The Andrews opinion, which never mentions the state (or federal) Constitution nor even utters the words “due process,” makes no such claim. While I believe Burrell is in this respect very misleading, and that Andrews has no application to the present case, the opinion in Burrell at least acknowledges the exception spelled out in Andrews. Thus Burrell states that although “mere involvement in ongoing disciplinary proceedings [by the employer whose disciplinary decision is at issue] does not, per se, violate due process principles^] [t]hose principles are violated, conversely, if the official or officials who take part in the proceedings are demonstrably biased or if, in the least, circumstances such as personal or financial interest strongly suggest a lack of impartiality." {Ibid., italics added.) The Burrell opinion therefore does not suggest that if the facts of that case were similar to those here the court would take the position adopted by Justice Haerle.