TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California XAVIER BECERRA Attorney General _________________________ : OPINION : No. 14-101 : of : September 28, 2017 : XAVIER BECERRA : Attorney General : : MANUEL M. MEDEIROS : Deputy Attorney General : : ________________________________________________________________________ THE HONORABLE ZACKERY P. MORAZZINI, DIRECTOR AND CHIEF ADMINISTRATIVE LAW JUDGE OF THE OFFICE OF ADMINISTRATIVE HEARINGS, has requested an opinion on the following questions: 1. Does the Administrative Procedure Act (Gov. Code, §§ 11340-11529) authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar? 2. Does title 20 United States Code section 1415(h)(1), or its implementing regulations, or California Education Code section 56505, subdivision (e)(1), authorize a party to a special education “due process hearing” to be represented by a person who is not an active member of the California State Bar? 1 14-101 CONCLUSIONS 1. The Administrative Procedure Act does not, in itself, authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar. 2. Neither title 20 United States Code section 1415(h)(1), nor its implementing regulations, nor California Education Code section 56505, subdivision (e)(1), authorizes a party to a special education “due process hearing” to be represented by a person who is not an active member of the California State Bar. ANALYSIS The Office of Administrative Hearings (OAH) is an entity within the Department of General Services.1 It is a “quasi-judicial tribunal that hears administrative disputes.” 2 OAH provides administrative law judges to conduct hearings for more than 1,500 state and local government agencies.3 Among its adjudicative responsibilities under the Administrative Procedure Act,4 the OAH provides mediators and administrative law judges from its Special Education Division to conduct proceedings related to special education disputes under contract with the Department of Education.5 Question 1 The first question is whether the provisions of the Administrative Procedure Act (APA) authorize a party in an administrative proceeding conducted by the OAH to be represented by a person who is not an active member of the California State Bar. We conclude that the APA does not, in itself, authorize such representation. 1 Gov. Code, § 11370.2. 2 See http://www.dgs.ca.gov/oah/About.aspx. 3 Id. 4 The Administrative Procedure Act comprises chapter 3.5 (commencing with section 11340), chapter 4 (commencing with section 11370), chapter 4.5 (commencing with section 11400), and chapter 5 (commencing with section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. 5 See Ed. Code, §§ 56505 (state “due process” hearing); 56504.5, subd. (a) (contracts for mediation and due process hearings); see also Dept. of General Services, Office of Administrative Hearings, CDE Agreement No. CN140144, http://www.documents.dgs.ca .gov/oah/SE/Scopeofwork%202014-15.pdf. 2 14-101 The focus of our analysis is on the “administrative adjudication” provisions of the APA, which are in chapters 4.5 and 5 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals