ASSISTING SELF REPRESENTED LITIGANTS IN ADMINISTRATIVE HEARINGS 2011

ASSISTING SELF REPRESENTED LITIGANTS IN ADMINISTRATIVE HEARINGS 2011 AOC Conference Thursday June 9, 2011

Context • Rise of administrative agency adjudications • Common areas where agencies operate – Public benefits – Licensing – Professional discipline – Land use – Public employees

Why are there administrative hearings? • Due process (Goldberg v. Kelley) • Statutes and regulations

What should happen in administrative process • Written notice with enough detail about allegations to prepare a defense • Opportunity to be heard by neutral decision maker • Opportunity to appeal to court (required by California Constitution)

State Agencies with large numbers of self represented litigants – California Department of Social Services – Employment Development Department/California Unemployment Insurance Appeals Board – Office of Administrative Hearings for child support, special education and Regional Center/Department of Developmental Services – State Personnel Board ? – Workers Compensation ? – Department of Motor Vehicles

Local Agencies with large numbers of self represented litigants – Housing authorities – Welfare department (General Assistance) – County indigent health care programs

Federal Agencies with large numbers of self represented litigants – Social Security Administration – Department of Veterans Affairs – Immigration

Initial steps for client – Determine what agency is involved – Determine time to appeal to keep benefits pending hearing – Determine process to appeal – Make sure agency accepts appeal and client gets receipt for filing

Requesting hearing – Follow directions on notice – State issue in general terms (agency action is wrong) unless directed otherwise – Make special requests on form (interpreter, disability accommodation)

Preparing for the hearing – Gather documents – Talk to witnesses (written statement is OK but in person testimony is better) – Look at case file (if applicable) – Research on legal arguments – Get position statement prior to hearing (if applicable)

Preparation for hearing – Investigation – Subpoena for documents – Subpoena witnesses – Employee file (Labor Code 1198. 5)

Prior to hearing • Copies of documents for judge and opposing party • Confirm witnesses will attend • (optional) prepare written statement • Prepare what will say at hearing and what witnesses will say

Settlement • Sometimes can negotiate settlement • Not required to take agency offer – if do not like proposal can say no.

Special Note on Overpayments • Advise criminal charges are possible, especially if large overpayment (over $10, 000) • Advise people not to talk to anyone, especially police or fraud investigator, about case • Advise what say in hearing can be used against client • Upside – if client wins, cannot proceed with criminal prosecution

Disability Insurance Benefits Impacted By “At Fault” UI Overpayments • Definition of an “at fault” overpayment • If UI agrees to monthly repayment plan, but claimant fails to make a payment, no agreement w/ UI. • If no UI repayment agreement, 100% offset applies to DI benefits, even though DI statutes and regulations must be liberally construed to alleviate the hardship of suffering a wage loss due to a disability.

Disability Benefits Impacted by “At Fault” UI Overpayments v. If claimant can establish hardship, UI offset reduced to 50% of disability benefit. v To establish hardship for DI reduction of offset, advise claimant to show all bill, debts, and itemize costs to pay for basic needs (food, shelter, healthcare) for self and family – similar to showing needed for waiver of nonfault OP.

Disability Benefits Impacted by “At Fault” Overpayments: Best Practices Advise self-represented party to: • request and attend UI hearing, even if facts establish fault; • bring evidence of hardship (all debts, lack of income/family resources) to convince ALJ to order UI $50 monthly re-payment plan, even though cannot waive at fault UI OP; and • make at least one $50 payment toward the UI repayment agreement to establishes good faith. Disability will honor UI re-payment agreement and will deduct only $50 from DI monthly benefit amount.

Pre-hearing Advice for the Self. Represented Party Frame the issue and fit the facts. Ø For example, in an Unemployment Insurance denial of benefits case, if the department determined the separation was a quit, the SRP has the burden to show good cause, which is a compelling reason, one that would make a reasonable person leave a paying job without first finding new employment. Ø If the separation is a discharge, then employer has the burden to show misconduct, which is a substantial breach of an important duty, owed to the employer, which is willful of wanton, and tends to injure the employer’s interests.

Prepare the Self-Represented Party for the Hearing • Let SRP know he or she may call the duty ALJ at local office where hearing will be held to ask any questions about hearing procedures or substance (if the agency follows this practice; CUIAB does). • Explain SRP should know what his or her witnesses will say; no need to make the other side’s case – they may bring a non-percipient witness, like an HR representative for an employer, who is not a percipient witness to the SRP’s alleged willful misconduct.

Prepare the Self-Represented Party for the HEARING Advise SRP to: ü attend the hearing in person or by telephone, not by written declaration if two party case; sworn testimony, subject to cross, generally is more persuasive than hearsay evidence; ü bring 3 copies of all documents, including audio tapes and video discs; and, ü remove hats, caps, chewing gum, and sunglasses, unless medically needed, before testifying.

Prepare the Self-Represented Party for the HEARING Advise SRP to: ü refrain from profanity or jokes; ü wait for the witness to finish the answer before asking the next question; ü wait for the interpreter’s translation of the question asked before giving an answer or asking a new question; ü answer the question asked; and, ü be respectful of the other side.

Prepare the Self-Represented Party for the HEARING Advise the SRP to not: ü laugh, sneer, shake the head or gesture after a witness answers a question; ü interrupt, especially the ALJ; ü rustle papers; and, ü be intimidated because the employer has a representative (most are not lawyers).

The Hearing • Most ALJs explain issue, applicable law, and procedure to SRPs; • In Unemployment Insurance and State Disability benefit hearings, ALJs actively question the SRP and witnesses. • The department appears by telephone in most DI cases, unless overpayment issue. • Department rarely appears in UI case.

The Hearing • Depending on the type of case, hearings at OAH may be more formal, with less direct questioning of the SRP • Child support cases at OAH are typically by phone, and SRP must request in person hearing. Will delay case • Special education cases are more formal, and decisions are lengthy, based on expert testimony

The Hearing § Most ALJs in UI cases will reframe a SRP’s cross examination question, and permit leading questions on direct. § In DI cases, SRPs should be advised to bring all pertinent medical records and test results if the issue is whether the claimant has recovered sufficiently to return to the work he or she was doing before she or he became disabled.

The Hearing • Parties are advised to bring 3 copies of all documents, audio recordings and video, but ALJs generally will make photocopies of documents. • Can’t incorporate cell phone displays as evidence; SRP needs to be advised to get such evidence onto a tangible format

The Hearing • Trend is toward ALJ in “engaged neutrality” with SRPs. • SRPs need to know that, in UI cases, they are not required to admit facts that will incriminate them – possessing a fake social security card or using someone else’s social security number; ALJ in UI case is required to administer 5 th amendment warning or testimony may be immunized from use in subsequent prosecution.

The Hearing • ALJs may seal hearing and record, even though hearings are open to the public and decisions are too. • SRP must waive confidentiality if testifying about drugs and alcohol (or related treatment)

Interpreters TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 Recipients of federal financial aid cannot discriminate on the basis of national origin u provide meaningful language access to LEP persons u. Cannot engage in intentional discrimination and practices that have a discriminatory intent

Interpreters • DOJ Guidance letter (8/16/201) • EO 13166 “Improving Access for Services for Persons with Limited English Proficiency”(8/2010) • DOJ 2002 Guidance Memo requires four factors to be balanced

Four-Factor Balance Test Agencies that receive federal funds are required to reduce language barriers in order to assure meaningful access to benefits and information. The individualized assessment requires that four factors be balanced: ü The number of proportion of LEP persons in the eligible service population ü The frequency with which LEP persons have contact with the agency or program ü The nature and importance of the program, service , or activity, and ü the resources available to the recipient of federal funds and the costs involved in providing language services

Interpreters: Qualified? Does the agency provide testing/certification of interpreters? What are the minimum qualifications/experience required? Special problems with telephone hearings Special Problems with Language Line type services

Interpreters: Qualified? On-going training? On-going assessment? Certified translation of documents? ü Voir Dire of non-certified interpreter to establish proficiency ü Inquiry, under oath, to ensure LEP person to ensure understands the translation being afforded to him or her

Agency Staff Bilingual? Does the agency provide testing of staff to ensure staff are proficient in the language? What are the minimum qualifications? Are Staff required to be re-tested? Are Staff translating documents to be used as evidence?

Post Hearing Procedures CUIAB – appeal to appeals board is a simple procedure • No cost to claimant; record is transmitted by agency • 6 months to file writ in superior court if wants further review.

Post Hearing Procedures OAH § Agency may substitute decision if unhappy with ALJ decision § SRP then must file a brief in opposition. § Final review is writ, filing time shorter than writs from CUIAB § Check and follow agency writ procedure and timeframe as it varies from agency to agency

Additional Resources for SRPs • Self Represented Litigation Network A collaborative group of organizations housed at the Center for State Courts; the working group meets monthly to share information and strategies re: judicial education; state codes of judicial conduct as they relate to SRLs and SRPs; and the deficiencies in the recently adopted Model State Administrative Procedure Act (MSAPA). Anyone interested should contact Richard Zorza, Richard@Zorza. net.

Additional Resources for SRPs • www. selfhelpsupport. org A national source of information on selfrepresented litigation, the site includes over 1, 000 resources and has 1, 400 members. The site has a newsletter with updates that goes to all members.

Additional Resources for LEP SRPs • www. lep. gov • Consortium for Language Access in the courts, www. ncsc. org/education-andcareers/state%20 interpreter-certification. aspx • National Association of Judiciary Interpreters and Translators, www. najit. org

Additional Resources for SRPs • Access to Justice on the World Wide Web: An annotated bibliography, Edmund J. Gorman, Jr. , Public Interest, Public Service, and Professional Responsibility (January 9, 2009) • Roadmap to Justice, Deborah H. Rhode and Dmitry Bam, http: //blogs. law. stanford. edu/road maptojustice/

Law Librarians: First Responders to SRPs in Crisis • A day in the life of a legal librarian: helping the SRP under stress. • Attempt to teach SRP skills for dealing with legal crisis, deadlines, and give resources within the library and outside the library to cope with the crisis. • Translate what the SRP is trying to do into what the SRP realistically can do, without practicing law.

Law Library Resource • Provides public with access to legal information, including use of computers for use in SRP cases • Provides referrals to organizations that may provide legal assistance, as well as assistance with basic human needs (food, shelter, employment) • Handles referrals from Courts and Legal Services

SRPs with Limited English Proficiency • SRPs with LEP present unique challenges to the Public Law Library • Challenge helping any SRP with accessing regulations and agency precedent, but SRPs with LEP have even greater needs. • Lack of interpreters, materials available in many, but not, all languages in locale of library

Links to Library Resources • San Francisco Law Library www. sflawlibrary. org • To find a local library: http: //www. publiclibrary. org • To find your nearest California Public Law Library: http: //www. publiclibrary. org/find. html • To find legal services and Law. Help. California http: //www. lawhelpcalifornia. org/CA/index. cfm • To find Law. Help. California. Resource. Directory, which you can select by county http: //www. lawhelpcalifornia. org/CA/State. Directory. cfm/County/%20/City/20%/dem o. Mode/%3 D%201/Language/1/State/%20/Text. Only/N/Zip. Code/%20/Logged. In/0/ directory 11/searchesletters/bysa