ASSISTING SELF REPRESENTEDPARTIES 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

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Why are there administrative hearings? Due process (Goldberg v. Kelly)

Statutes and regulations

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 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)

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State Agencies with large numbers of Self-Represented Parties (SRPs) 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

Department of Motor Vehicles State Personnel Board (increasing trend) Workers Compensation (increasing trend)

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Local agencies with large numbers of SRPs

Housing authorities Welfare department (General

Assistance) County indigent health care

programs

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Federal Agencies with large numbers of SRPs

Social Security Administration Department of Veterans Affairs Immigration

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Initial steps for the SRP

Determine what agency is involved Determine time to appeal Determine time to appeal to keep

benefits pending hearing Determine process to appeal Make sure agency accepts appeal and

client gets receipt for filing

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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)

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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)

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Preparation for hearing – Investigation

Subpoena for documentsSubpoena witnessesEmployee file (Labor Code 1198.5)

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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

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Settlement

Sometimes can negotiate settlement Not required to take agency offer – if do

not like proposal can say no.

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If issue is overpayment, SRP needs to know about potential criminal charges Criminal charges are possible,

especially if large overpayment (over $10,000)

People should not talk to anyone, especially police or fraud investigator, about case

What is said in hearing can be used against person

Upside – if individual wins, cannot proceed with criminal prosecution

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Initial assessment of SRP

Does SRP have any issue with ability to read and comprehend written materials?

Does SRP have any issue with ability to hear or speak?

Does SRP have any disability that needs an accommodation from the agency?

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Initial assessment of SRP

Is SRP a person with Limited English Proficiency (LEP)?

Is SRP able to read written materials in native language?

Is SRP able to write in native language?

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Initial assessment of SRP

If SRP is a person with LEP, or is Deaf or Hard of Hearing, or needs an accommodation: Help SRP notify agency of need for

• Qualified interpreter in language of SRP• Qualified American Sign Language

Interpreter• Accommodation for Disability (reading,

writing, physical disability)

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Interpreters

TITLE VI OF THE CIVIL RIGHTS ACT OF 1964Recipients of federal financial aid (state agencies) cannot discriminate on the basis of national origin

must provide meaningful language access to LEP persons

cannot engage in intentional discrimination or have practices that have a discriminatory intent

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Department of Justice (DOJ) implementation

2002 DOJ memo to the recipients of federal funds:

All recipients are required to reduce language barriers in order to assure meaningful access to benefits and information; and,

All recipients are required to do individualized assessment of need.

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Recipients’ individualized assessment Individualized assessment must

determine: The number of proportion of LEP persons

in the eligible service population The frequency with which LEP persons

have contact with the agency or program The nature and importance of the

program, service, or activity, and the resources available to the recipient

of federal funds and the costs involved in providing language services

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DOJ’s recent reminder: Language Access Matters

DOJ Guidance letter (8/16/2010) EO 13166 “Improving Access for

Services for Persons with Limited English Proficiency”(8/2010)

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SRP should insist on proper translation of documents

Most agencies have Spanish-speaking staff

Bilingual staff receive higher pay Ability to speak/read varies Often bilingual staff translate evidentiary

documents for hearing (paid by the word) Advise SRP to ask interpreter at hearing

to check translation for accuracy

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SRP re: interpreters

Is SRP able to understand the interpreter?

Some ALJs will inquire, but many do not

If individual cannot understand the interpreter, tell the ALJ at the beginning of the hearing on the record

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SRP re: Interpreter – Part 2

Interpreter is required to review file with SRP before hearing

Interpreter should translate all documents in the file, not just identify what the document is• If interpreter does not translate the

documents, even after SRP requests it, SRP should tell the ALJ at beginning of hearing, on the record

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SRP re: Interpreter – Part 3

Agency should provide testing/certification for interpreters; as a practical matter, cannot do so for all languages

If interpreter is not certified, ALJ should question interpreter to determine how gained proficiency in language • If ALJ does not inquire, SRP should ask ALJ

to find out interpreter’s qualifications

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SRP re: Interpreter – Part 4

Prepare SRP for potential use of “phone interpreter” and to insist on in person (unless SRP has to appear by telephone)

Not as effective as in-person assistance Often have no court experience or very

limited Cannot review file with SRP in person May delay hearing, so SRP must be

willing to wait for agency to find qualified interpreter

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SRP re: Interpreters and Phone Hearings

If telephone hearing is optional for SRP (i.e. agency desire, not SRP’s need), ask for in-person hearing, but may cause delay

If telephone hearing necessary for SRP, ask for time to review file over the telephone with interpreter prior to hearing

SRP should make sure has all documents in file (this is true for all telephone hearings)

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SRP re: Quality of Interpretation

Qualified interpreter in SRP’s native language required

Interpreter is supposed to interpret exactly what judge says and exactly what SRP says• Interpreter should not advise SRP how to

answer or give verbal cue how to answer• Interpreter should not “explain” what judge

is saying; if SRP does not understand, ask the judge

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Additional tips to prepare SRP for hearingPart 1 SRP may call local agency office to ask

questions California Unemployment Insurance

Appeals Board (CUIAB) has a duty ALJ at every office who will answer questions staff are not able to answer

Explain SRP should know what his or her witnesses will say; no need to make the other side’s case case

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Additional tips to prepare SRP for hearingPart 2 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;

Bring 3 copies of all documents, including audio tapes and video discs; and,

Remove hats, caps, chewing gum, and sunglasses, unless medically needed, before testifying.

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Additional tips to prepare SRP for HearingPart 3 Refrain from profanity or jokes; Wait for the witness to finish the answer

before asking the next question; Wait for the interpreter’s translation of

the question asked before giving an answer or asking a new question;

Truthfully answer the question asked; and,

Be respectful of the other side.

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Additional tips to prepare SRP for hearingPart 4SRP SHOULD NOT: Laugh, sneer, shake the head or

gesture after a witness answers a question;

Interrupt, especially the ALJ; Rustle papers; and, Be intimidated because the other side

has a lawyer or representative.

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Additional tips to prepare SRP re: hearingPart 5 May bring anyone for assistance; must be

own advocate and be persistent while being polite

Most ALJs explain issue, applicable law, and procedure to SRPs;

ALJ may actively question SRP and witnesses; some ALJs do not

Witnesses may appear by video, telephone or submit sworn or unsworn written statements – explain significance of hearsay

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Additional tips to prepare SRP re: hearingPart 6 Depending on the type of case, hearings

at Office of Administrative Hearings (OAH) may be more formal, and ALJ may not directly question SRP, but most do

Child support cases at OAH are typically by phone, and SRP must request in person hearing – but will delay case

Special education cases are more formal, and decisions are lengthy, based on expert testimony

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Additional tips to prepare SRP re: hearingPart 7 In certain cases, ALJ will help SRP

reframe a cross examination question, and permit leading questions on direct examination.

If medical issue, advise SRP to bring 3 copies of all pertinent medical records and test results.

If financial issue, or SRP wants waiver of overpayment, advise to bring 3 copies of all financial documents showing hardship

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Additional tips to prepare SRP re: hearingPart 8 Bring 3 copies of all documents, audio

recordings and video. Make sure cell phone evidence is on a

paper, CD, or other tangible format; ALJ cannot incorporate cell phone displays as evidence

SRP may have to authenticate exhibit and explain that picture is accurate depiction

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Additional tips to prepare SRP re: hearingPart 9 Trend is toward ALJ in “engaged

neutrality” with SRPs; SRP should not get upset if ALJ asks lot of questions .

SRP is not required to admit incriminating facts such as SRP is undocumented, possesses fake identification or social security card, or is using someone else’s social security number

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Additional tips to prepare SRP re: hearingPart 10 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)

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Post Hearing Procedures

Unemployment, state disability and state tax assessment appeals – SRP may appeal to appeals board with a letter

No cost to claimant; record is transmitted by agency

6 months to file writ in superior court if wants further review.

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Post Hearing Procedures – Part 2 Office of Administrative Hearings Particular 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 particular

agency/department writ procedure and time frame – a lot of variation

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Additional Resources for SRPsAdditional 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.

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Additional Resources for SRPsPart 2 www.selfhelpsupport.org

A national source of information on self-represented 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.

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Additional Resources for LEP SRPsPart 3 www.lep.gov Consortium for Language Access in the

courts, www.ncsc.org/education-and-careers/state interpreter-certification.aspx

National Association of Judiciary Interpreters and Translators, www.najit.org

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Additional Resources for SRPsPart 4 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/

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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.

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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

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SRPs with LEP at the law library 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

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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 LawHelpCalifornia

http://www.lawhelpcalifornia.org/CA/index.cfm To find LawHelpCaliforniaResourceDirectory,which

you can select by county http://www.lawhelpcalifornia.org/CA/StateDirectory.cfm/County/%20/City/20%/demoMode/%3D%201/Language/1/State/%20/TextOnly/N/ZipCode/%20/LoggedIn/0/directory11/searchesletters/bysa

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