ASSISTING SELF REPRESENTED PARTIES IN ADMINISTRATIVE HEARINGS

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ASSISTING SELF REPRESENTEDPARTIES IN
ADMINISTRATIVE HEARINGS

• 2011 AOC Conference Thursday June 9, 2011

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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 documents
• Subpoena witnesses
• Employee 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 1964
• Recipients 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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DOJs 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 interpreters 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 SRPs 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 SRPs 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 sides 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 interpreters 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 4

• SRP 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 elses 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 SRPs

• 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_at_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.lawhelpcalifor
  nia.org/CA/StateDirectory.cfm/County/20/City/20/
  demoMode/3D201/Language/1/State/20/TextOnly/N/Z
  ipCode/20/LoggedIn/0/directory11/searchesletters/
  bysa