7. Due Process Concerns
We now turn to the due process rights of parties in an adjudicatory proceeding. As the California Court of Appeal has indicated, ex parte prohibitions are necessary to avoid the use of "evidence" received outside the record and to preserve "the due process requirement of an unbiased tribunal and the related public interest in avoiding the appearance of bias on the part of public decisionmakers."29 These due process considerations are present even in a rulemaking proceeding, if there is a detriment to a party's adjudicatory claims.30
The public interest does acknowledge that "[a]gency officials may meet with members of the industry both to facilitate settlement and to maintain the agency's knowledge of the industry it regulates. . . . [as] such informal contacts between agencies and the public are the `bread and butter' of the process of administration and are completely appropriate so long as they do not frustrate judicial review or raise serious issues of fairness."31
The facts of this case do not evidence that the communications were consistent with these principles of impartial judicial review and fairness. As discussed, the communications were carried out in connection with the defendants' overall legal strategy to ultimately achieve a stay or dismissal of the complaints. A similar opportunity to influence the outcome did not exist for parties who were never aware of a meeting held between their opponents and Commissioners or their personal advisors who may ultimately decide or advise on the ultimate fate of the adjudication. As a consequence, the communications had the potential to distort the ultimate outcome of the adjudications and constituted a violation of UCAN's due process rights. Law professor Michael Asimow describes the harm such ex parte contacts threatens to adjudicatory processes where due process concerns should be foremost:
The rationale for a prohibition on ex parte contact is familiar to all lawyers: it is deeply offensive in an adversarial system that any litigant should have an opportunity to influence the decision-maker outside the presence of opposing parties. The parties may spend weeks or months conducting a detailed adjudicatory hearing and an administrative law judge may prepare a painstakingly detailed proposed decision. Yet all this can be set at naught by a few well chosen words whispered into the ear of an agency head or the agency head's adviser. Ex parte contacts frustrate judicial review since the decisive facts and arguments may not be in the record or the decision. Finally, ex parte contacts contribute to an attitude of cynicism in the minds of the public that adjudicatory decisions are based more on politics and undue influence than on law and discretion exercised in the public interest.32
In summary, the focus of the complaints is the meaning of Section 2883 and its several subsections and terms. By discussing Section 2883 with the personal advisors, under the rubric of supporting a rulemaking, AT&T and Cox were seeking a rulemaking that would possibly supplant the adjudications. They obtained an exclusive listening audience to their interpretation of Section 2883. They also had the exclusive opportunity to plant the seeds for Commission consideration of a possible appeal from the Presiding Officer's decision based on these and other of their arguments. Their conduct constitutes an impermissible ex parte communication in violation of Section 1701.2(b) and Rule 7(b) of the Commission's Rules of Practice and Procedure.
29 55 Cal. App. 4th at 1319.
30 See, e.g., Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir. 1959) involving a Federal Communications Commission (FCC) rulemaking to allocate TV channels in various locations (similar to the assignment of 911 responsibilities sought by defendants in their Rules Motion). During the proceeding, one of the competing applicants met privately with Commission members and gave them private letters attempting to secure an advantage in the allocation. The FCC claimed that because the proceeding was a rulemaking, the attempts to influence the decisionmakers did not invalidate the result. The federal court of appeals disagreed, observing that "whatever the proceeding may be called it involved not only allocation of TV channels...but also resolution of conflicting private claims to a valuable privilege, and that basic fairness requires such a proceeding to be carried out in the open." (Id. at 224.) The court also indicated, "Interested attempts `to influence any member of the Commission...except by recognized and public processes' go `to the very core of the Commission's quasi-judicial powers..." (Id. quoting Massachusetts Bay Telecasters, Inc. v. FCC, 261 F.2d 55, 56 & 67 (D.C. Cir. 1958).
31 Louisiana Ass'n of Indep. Producers v. FERC, 958 F.2d 1101, 1113 (D.C. Cir. 1992).
32 M. Asimow, Toward a New California Administrative Procedure Act: Adjudication Fundamentals, 39 UCLA L. Rev. 1067, 1127-28 (1992).
