Chi v. Dept. of Motor Vehicles

Filed 4/7/26 (unmodified opinion attached)

                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     FIRST APPELLATE DISTRICT

                               DIVISION FIVE


 PENGFEI PHILIP CHI,                            A172237
          Plaintiff and Appellant,
                                                (Alameda County Super. Ct.
 v.                                             No. 24CV067384)
 DEPARTMENT OF MOTOR
 VEHICLES,                                      ORDER MODIFYING
                                                OPINION [NO CHANGE IN
          Defendant and Respondent.
                                                JUDGMENT]


THE COURT:
      Pursuant to California Rules of Court, rule 8.264(c)(1), the
opinion filed on March 24, 2026, shall be MODIFIED as follows:


         1. On page 10, in the first full paragraph, the last
            sentence (“Having presented . . . unbiased.”) is
            deleted and replaced with:

               Because Chi has presented no evidence of an
               unacceptable risk of bias, we must assume
               that the hearing officer could decide the case
               fairly.

         2. On page 15, the first full paragraph is deleted
            and replaced with the following paragraph:

               Adjudicators need some latitude to do their jobs. It is
               part of the job of judging to control the proceedings,
               ask probing questions, and develop and express
                                         1
              opinions about the facts based on the evidence. (See
              People v. Guerra (2006) 37 Cal.4th 1067, 1111,
              disapproved on another ground in People v. Rundle
              (2008) 43 Cal.4th 76, 151; Today’s Fresh Start, supra,
              57 Cal.4th at p. 230; Andrews, supra, 28 Cal.3d at pp.
              795-796.) Without running afoul of the due process
              clause, an adjudicator may express “skepticism”
              (People v. Banks (2014) 59 Cal.4th 1113, 1175) or ask
              questions that “rais[e] whatever concerns weigh[]
              most heavily” on her mind (Today’s Fresh Start, at p.
              230). Vigorous questioning may simply reflect the
              adjudicator’s effort to “afford[] the [litigant] the
              chance to allay those concerns.” (Ibid.) An
              adjudicator may find it necessary to reprimand or
              speak harshly to a disruptive or uncivil participant.
              (Guerra, at p. 1111.) Although adjudicators may
              sometimes err or display intemperance, such
              behavior, though regrettable, does not ordinarily
              violate the constitution. (See ibid.; Nieves, supra, 11
              Cal.5th at p. 499.) The Legislature is free to impose
              stricter standards. But the due process clause,
              together with the presumption against bias,
              establishes a floor that gives adjudicators
              considerable leeway to perform their duties. Under
              the Clarke test, however, adjudicators will be
              constantly looking over their shoulders, afraid of
              doing or saying something that might be interpreted
              as unconstitutional advocacy.

The modifications make no change to the judgment.



                                                          BURNS, J.
WE CONCUR:


JACKSON, P.J.
CHOU, J.

Chi v. Department of Motor Vehicles (A172237)


                                        2
Superior Court of Alameda County, No. 24CV067384, The Hon.
Michael M. Markman, Judge.

Rodney Thomas Gould for Petitioner and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Supervising
Assistant Attorney General, Austin J. Cattermole, Supervising
Deputy Attorney General, and Edward Garcia, Jr., Deputy
Attorney General, for Respondent.




                               3
Filed 3/24/26 (unmodified opinion)

                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     FIRST APPELLATE DISTRICT

                               DIVISION FIVE

 PENGFEI PHILIP CHI,
        Petitioner and Appellant,
 v.                                            A172237

 DEPARTMENT OF MOTOR                           (Alameda County Super. Ct.
 VEHICLES,                                     No. 24CV067384)
        Respondent.


      Pengfei Philip Chi appeals from the trial court’s denial of
his petition for a writ of mandate challenging the suspension of
his driving privileges by the Department of Motor Vehicles. He
argues that the department’s administrative hearing officer
violated his due process rights by acting as a prosecutor rather
than a neutral adjudicator. We disagree and affirm.

      Our Supreme Court has granted review in a similar case,
Romane v. Department of Motor Vehicles (2025) 110 Cal.App.5th
1002, 1019, 1021, review granted August 13, 2025, S291093
(Romane). Romane is part of a line of recent cases—all involving
the department—that examine this same due process issue. As
we explain, we believe that some of these cases conflict with our
Supreme Court’s precedent by employing an appearance of bias
standard for assessing an adjudicator’s impartiality and by
overlooking the presumption of impartiality that courts afford to
adjudicators.




                                     4
                           BACKGROUND

                                 A.

       By statute, a driver is deemed to have consented to a blood
or breath test to determine the driver’s blood alcohol content if
the driver is arrested for driving under the influence of alcohol.
(Veh. Code, § 23612, subd. (a)(1)(A). 1) As relevant here, refusing
a peace officer’s request to submit to a test, in circumstances
providing reasonable cause to believe the person was driving
under the influence of alcohol, results in a one-year suspension of
driving privileges. (§ 13353, subd. (a); see also § 23612, subd.
(a)(1)(D) [providing that the driver must be advised that failure
to submit to chemical testing will result in administrative
suspension of his or her driver’s license for one year].)

       After providing the driver with notice of the suspension
(effective 30 days from the arrest date), the officer forwards to the
department copies of the notice and the officer’s sworn report. (§
23612, subds. (f), (g)(1); see also § 13380, subd. (a).) The
department conducts an automatic internal review of the report
and any other accompanying evidence and will set aside the
suspension if the evidence does not support it. (§ 13557, subds.
(a), (b)(2).)

      The driver may also request an administrative hearing.
(§ 13353, subd. (e); see also §§ 13558, 14100.) The issues at the
hearing are limited. The hearing officer will sustain the
suspension if there was reasonable cause to believe that the
person was driving under the influence in violation of the law;
the person was arrested or lawfully detained; the person refused
chemical testing upon request by a peace officer; and the person
had been advised of the consequences of refusing to submit to



        1 Undesignated statutory references are to the Vehicle

Code.
                                  5
testing. (§ 13557, subds. (b)(1)(A)-(D); see also § 13558, subd.
(c)(1).)

       In 2022, California DUI Lawyers Assn. v. Department of
Motor Vehicles (2022) 77 Cal.App.5th 517 (California DUI
Lawyers) held that the department’s hearing structure violated
the due process clause. At the time, the department defined the
role of a hearing officer as “ ‘a trier of fact as well as an advocate
for the department,’ ” directing the hearing officer to “ ‘[a]ssist,
defend, prepare and/or present [the department]’s case’ ” and to
rule on “the admissibility of the documentation he or she offers as
evidence as ‘advocate for the [department]’ in support of the
[department’s] position.” (California DUI Lawyers, at p. 527.)
The court held that this combination of advocacy and
adjudicatory functions in an individual hearing officer created an
unconstitutional risk of bias. (Id. at pp. 530-533.)

      In response, the department changed its policy. Thus, at
the time of the hearing in Chi’s case, the department specified
that the hearing officer acts only as a neutral trier of fact, does
not represent or advocate for the department, and is not tasked
with preparing the department’s case. Hearing officers are
instructed to introduce any relevant evidence received from law
enforcement, ask clarifying questions if necessary, and rule on
objections. Since 2022, all hearing officers are instructed on this
policy and are trained not to advocate on behalf of the
department when conducting a hearing. 2



      2 Although our record does not contain a copy of the written

policy, it contains a declaration by a department staff person
summarizing the policy, the accuracy of which Chi does not
dispute.
       Pursuant to a department regulation that took effect July
1, 2024, a hearing officer is “not an advocate for the [d]epartment
but is a neutral decision-maker.” (See Cal. Code Regs., tit. 13,
§ 115.01, subd. (b)(1); see also id., § 115.01, subd. (b)(2).)
                                  6
                                B.

      In March 2022, California Highway Patrol (CHP) officers
stopped Chi’s vehicle after they observed it swerving and
traveling at over 100 miles per hour on Interstate 880. According
to the arrest report, Chi’s eyes were red and watery, he smelled
like an alcoholic beverage, his speech was slurred, and he was
swaying back and forth. Chi admitted to having drunk two beers.
After he failed a series of field sobriety tests, an officer placed
him under arrest for driving under the influence of alcohol. (See
§ 23152, subd. (a).) Subsequently, after an officer advised him
that refusing to submit to a chemical test would result in the
suspension of his driving privilege, Chi repeatedly refused to
submit to further testing. The officer then served Chi with notice
that his license would be suspended due to his refusal to take a
chemical test.

       At an administrative hearing in February 2024, the only
participants were Chi, his counsel, and the department’s hearing
officer. Consistent with the policy adopted by the department in
2022, the hearing officer explained that she would be “acting as a
neutral factfinder.” She would “not act as an advocate for the
[department] or [for] law enforcement.” Over Chi’s hearsay
objections, the hearing officer moved the department’s evidence
into the record, including the CHP officer’s sworn statement, the
accompanying arrest report, and video camera footage from the
arrest.

      In response to his attorney’s questions, Chi testified that
English was not his native language and that, when he was
speaking to the CHP officers, he “couldn’t hear” due to
background noise. He did not remember being advised that, if he
refused to take a test, his driving privilege would be suspended.
The hearing officer had just one “clarifying question”: “At any
point when you were having the conversation with the officer, did
you communicate to the officer that you couldn’t hear him well?”

                                7
Chi responded that he could not recall. His attorney argued that
Chi could not hear or understand any admonition about the
consequences of refusing to test.

      Ultimately, the hearing officer sustained the suspension in
a written decision. She found that Chi was advised of the
consequences of refusing to submit to chemical testing and that
he nonetheless refused to test.

       In his petition for a writ of mandate, Chi argued that the
administrative hearing violated his due process rights because
the hearing officer acted as an advocate for the department. The
trial court disagreed and denied the petition.

                            DISCUSSION

                                  A.

      Our Supreme Court’s law on this issue is well developed.
The due process clauses of both the federal and state
constitutions require the state to afford a fair process before
depriving someone of their property. (U.S. Const., 14th Amend.,
§ 1; Cal. Const., art. 1, § 7, subd. (a); Today’s Fresh Start, Inc. v.
Los Angeles County Office of Education (2013) 57 Cal.4th 197,
212 (Today’s Fresh Start); see also Bell v. Burson (1971) 402 U.S.
535, 539 [holding that a state may not take away a driver’s
license without providing due process].) Because the two clauses
are “substantially overlapping,” the court looks to the United
States Supreme Court’s precedents for guidance. (Today’s Fresh
Start, at p. 212.)

      A fair process requires an impartial adjudicator. (Today’s
Fresh Start, supra, 57 Cal.4th at p. 212.) However, the due
process standard is more limited than statutes and ethical rules
that are designed to prevent bias or the appearance of bias. (See
People v. Freeman (2010) 47 Cal.4th 993, 996 (Freeman); People v.
Cowan (2010) 50 Cal.4th 401, 457 (Cowan); Caperton v. A.T.
Massey Coal Co. (2009) 556 U.S. 868, 890 (Caperton).) Courts
                                  8
should not routinely invoke the due process clause as a ground
for disqualification. (Freeman, at p. 1005.) Due process
establishes a constitutional floor, not a uniform standard, and it
“operates only as a ‘fail-safe’ and only in the context of extreme
facts.” (Id. at pp. 1005-1006; Bracy v. Gramley (1997) 520 U.S.
899, 904.) While an appearance of bias may violate a statute
(see, e.g., Gov. Code, § 11425.30, subd. (a)), it does not violate the
due process clause. (Freeman, at pp. 996, 1005.)

      The controlling principle for determining unconstitutional
bias rests on the general concept that an adjudicator must
remain disinterested in the outcome of the case. (See People v.
Nieves (2021) 11 Cal.5th 404, 499 (Nieves); Caperton, supra, 556
U.S. at p. 878.) Examples of disqualifying interests include a
financial interest in the outcome (Haas v. County of San
Bernardino (2002) 27 Cal.4th 1017, 1024; see also Tumey v. State
of Ohio (1927) 273 U.S. 510, 523); a personal bias against a party,
such as a prejudice against women (Catchpole v. Brannon (1995)
36 Cal.App.4th 237, 249, 262; In re Marriage of Iverson (1992) 11
Cal.App.4th 1495, 1499-1502) or noncitizens (Hernandez v.
Paicius (2003) 109 Cal.App.4th 452, 455); or a personal grudge
against a party based on a history of conflict (Nieves, at p. 499). 3

      Unless an adjudicator has a financial interest, the
adjudicator is presumed to be impartial, and the burden of
establishing bias rests on the party that claims it. (Today’s Fresh
Start, supra, 57 Cal.4th at p. 219; Withrow v. Larkin (1975) 421
U.S. 35, 47 (Withrow).) This presumption may be overcome only
by specific circumstances that demonstrate “a constitutionally


      3 In Freeman, supra, 47 Cal.4th at p. 1006, fn. 4, our

Supreme Court cited Catchpole, Iverson, and Hernandez as
examples of cases demonstrating actual bias, but the court
disapproved of them to the extent they suggested that a mere
appearance of bias is sufficient to violate due process.


                                  9
intolerable possibility that [the decisionmaker] harbored an
interest in the outcome” of the case. (Nieves, supra, 11 Cal.5th at
p. 499; see also Rippo v. Baker (2017) 580 U.S. 285, 286-287;
Williams v. Pennsylvania (2016) 579 U.S. 1, 8 (Williams).) The
inquiry is objective—the question is whether there are
circumstances that could tempt an average adjudicator to favor
one side, based on a “ ‘ “realistic appraisal of psychological
tendencies and human weakness.” ’ ” (Cowan, supra, 50 Cal.4th
at p. 457.) Unless the party offers “ ‘specific evidence’ ” of such
circumstances, demonstrating an unacceptable risk of bias, an
adjudicator is presumed to be capable of judging the case fairly.
(Today’s Fresh Start, at pp. 221-222.)

      Litigants have sometimes argued that the structure of an
administrative hearing process poses an intolerable risk of bias.
Although the requirement of a neutral adjudicator applies to
administrative proceedings, the standard is more relaxed than in
judicial proceedings. (Today’s Fresh Start, supra, 57 Cal.4th at p.
214.) The constitution does not require agencies to use the
adversarial trial model, which is often more resource-intensive
and expensive than necessary for resolving administrative
disputes. (Ibid.; see 2 Pierce, Administrative Law Treatise (7th
ed. 2024), Separation of Functions, § 7.8, p. 1085.) Due process
thus allows the government flexibility to combine investigator,
prosecutor, and adjudicator functions within a single agency.
(Today’s Fresh Start, at p. 221; Withrow, supra, 421 U.S. at p. 53;
Sheldon v. S.E.C. (11th Cir. 1995) 45 F.3d 1515, 1518 [“ ‘It is
uniformly accepted that many agencies properly combine the
functions of prosecutor, judge and jury’ ”].) In the seminal case
Withrow v. Larkin, the high court explained that there is “[n]o
single answer” and “the growth, variety, and complexity of the
administrative processes have made any one solution highly
unlikely.” (Withrow, at p. 51.)



                                10
      Courts have sometimes found due process violations where
an agency combined prosecutor and adjudicator functions in ways
that posed an unacceptable risk of bias. (See Today’s Fresh Start,
supra, 57 Cal.4th at pp. 223-224 [surveying cases].) When a
prosecutor is the adjudicator, for example, a risk of bias stems
from the fact that a single person sits in judgment of her own
prosecution. (See Williams, supra, 579 U.S. at pp. 8-10; In re
Murchison (1955) 349 U.S. 133, 137-138.) Similarly, when a
prosecutor advises an adjudicator, there is a risk that the
prosecutor will give the adjudicator advice that is skewed toward
the prosecutor’s position. (See Howitt v. Superior Court (1992) 3
Cal.App.4th 1575, 1585.) But, in general, there is no magic
formula. (See Withrow, supra, 421 U.S. at p. 51.) As our
Supreme Court has noted, “[a]t the extreme, the Supreme Court
has countenanced proceedings where a single individual may act
as investigator, prosecutor, and decision maker” in limited
circumstances. (Today’s Fresh Start, at p. 221, citing Goss v.
Lopez (1975) 419 U.S. 565, 581-584.)

       When it comes to structures that combine investigator and
adjudicator functions, our Supreme Court has consistently
rejected due process challenges. (See, e.g., Today’s Fresh Start,
supra, 57 Cal.4th at pp. 220-221, 225-227; Kloepfer v.
Commission on Judicial Performance (1989) 49 Cal.3d 826, 833-
835; Griggs v. Board of Trustees (1964) 61 Cal.2d 93, 97-98.)
Agencies may dispense with partisan advocates, leaving to the
adjudicator the task of both developing the facts and making a
final decision. (See Today’s Fresh Start, at pp. 220-221, 223;
Richardson v. Perales (1971) 402 U.S. 389, 410 (Richardson).)
The combination of adjudicator and investigator functions is
“ ‘inquisitorial rather than adversarial.’ ” (Today’s Fresh Start, at
pp. 220-221; see also Withrow, supra, 421 U.S. at p. 52.) In
Richardson, for example, the high court rejected a separation-of-
functions challenge to a federal Social Security proceeding in
which the individual hearing examiner was “charged with
                                 11
developing the facts” as well as adjudicating the applicant’s
benefits claim. (Richardson, at p. 410; see also Withrow, at pp.
46-55 [upholding state medical board that investigated and
adjudicated medical license suspensions].)

      Our standard of review is de novo. (See Cardona v. Soto
(2024) 105 Cal.App.5th 141, 150.)

                                B.
       Chi contends that his due process rights were violated
because the department’s hearing officer acted as a prosecutor by
introducing evidence against him, then acted as an adjudicator
when overruling his evidentiary objections and issuing a decision
in his case. As discussed below, Chi frames the constitutional
issue incorrectly. Properly framed, the question presented is
whether the combination of functions poses an unacceptable risk
of bias. It does not.

       First, we reject the notion that the hearing officer
functioned as a prosecutor or an advocate for the department. As
explained, in 2022, following California DUI Attorneys, supra, 77
Cal.App.5th 517, the department changed its policy to require
hearing officers to act as a neutral trier of fact, not as a
department representative or advocate. The hearing officer may
introduce relevant evidence, ask clarifying questions, and rule on
objections, which are all tasks consistent with the role of a
neutral fact-finder. This combination of investigation and
factfinding roles is inquisitorial, rather than adversarial, and
does not, by itself, offend due process. (See Today’s Fresh Start,
supra, 57 Cal.4th at pp. 220-221; Withrow, supra, 421 U.S. at pp.
54-55; Richardson, supra, 402 U.S. at p. 410.) Nor does the
omission of a prosecutor “transmute the judge into a prosecutor”
or violate due process. (People v. Carlucci (1979) 23 Cal.3d 249,
256 (Carlucci) [rejecting due process claim where a trial court
judge called and questioned witnesses at a traffic infraction
hearing in the absence of a prosecutor]; see also Richardson, at p.

                                12
410 [reasoning that a hearing examiner who develops the facts
“does not act as counsel”]; Today’s Fresh Start, at pp. 220-221
[rejecting claim that county board’s advisory staff functioned as
advocates when they investigated and recommended revocation
of school charter].)

       Second, and more importantly, Chi never addresses the
correct legal standard. He never explains, even theoretically,
how the particular combination of roles that he highlights—the
hearing officer’s introduction of relevant evidence and ruling on
objections—presents an unacceptable risk of bias. (See Nieves,
supra, 11 Cal.5th at p. 498.) Assigning both tasks to a neutral
hearing officer does not incentivize the officer to favor the
department. (See Carlucci, supra, 23 Cal.3d at p. 256.)
Essentially, Chi is complaining that the administrative hearing
does not follow the adversarial trial model, where the advocates
introduce evidence and a judge rules on objections. That train
left the station decades ago. (See Withrow, supra, 421 U.S. at pp.
47-55.) Having presented no evidence of an unacceptable risk of
bias, Chi has failed to rebut the constitutional presumption that
the hearing officer was unbiased. (See Today’s Fresh Start,
supra, 57 Cal.4th at p. 222; Withrow, at p. 47.)

                                C.
       Chi frames the constitutional issue differently. He claims
that the hearing officer’s actions at the hearing—specifically,
again, moving documents into evidence, then overruling Chi’s
objections to them—created an unconstitutional appearance of
bias. Ordinarily, we would summarily reject this argument. It is
well settled that a mere appearance of bias does not violate the
due process clause. (See Freeman, supra, 47 Cal.4th at p. 1005.)
Chi’s failure to present evidence of an unacceptable risk of bias
should end the discussion.

     But Chi points to a recent line of cases that make the issue
more complicated. Our Supreme Court has granted review in one
                                13
of the cases, Romane, supra, 110 Cal.App.5th 1002, review
granted August 13, 2025, S291093. As we shall explain, we think
the case law has taken a wrong turn.

       California DUI Lawyers held that the combination of
advocacy and adjudication functions—under the department’s
former policy—presented an unacceptable risk of bias.
(California DUI Lawyers, supra, 77 Cal.App.5th at pp. 530-533.)
In a footnote, the court recognized that a combination of
investigation and adjudication functions would be different: “[the
department] may task the same person with both collecting and
developing the evidence and rendering a final decision.” (Id. at p.
533, fn. 5, citing Today’s Fresh Start, supra, 57 Cal.4th at p. 220.)
The court then added: “He or she must refrain, however, from
advocating on behalf of the [department] as the [department
policy] currently mandates (i.e., present the [department’s] case
and ‘promote driver safety,’ with no corresponding duty to
present any evidence that would support the position of the
driver at the hearing).” (Ibid.) Although this last point seems to
focus on the favoritism mandated by the department’s (then-
current) policy, it also introduced, somewhat ambiguously, the
notion that a hearing officer might act as an advocate despite a
(hypothetical) policy that limits her role to investigating.

       In Knudsen v. Department of Motor Vehicles (2024) 101
Cal.App.5th 186 (Knudsen), the court considered the case of a
driver whose hearing took place under the same policy California
DUI Lawyers held to be unconstitutional. (See Knudsen, at pp.
206, 208.) Knudsen recognized that, as California DUI Lawyers
held, “the policy implemented by the [department] violated the
due process right to an impartial adjudicator.” (Knudsen, at p.
199.) Knudsen went on to say, however, that “in an actual case,
it may be that a public hearing officer did not actually act as an
advocate despite the [department’s] stated policy.” (Id. at p. 206.)
As a result, the court said it would examine “the administrative

                                 14
record and the revocation decision to see if the public hearing
officer actually acted as both an adjudicator and an advocate, or
merely acted as an adjudicator and a collector and developer of
evidence.” (Id. at p. 193.) After reviewing the record, the court
categorized some of the hearing officer’s actions as advocacy,
including: “inaccurate characterizations of important testimony,”
questions that tended to “undermine,” “discredit,” and
“mischaracterize” a defense expert’s testimony, and a legal error
that “significantly benefited” the department. (Id. at pp. 210-213
& fn. 13.) It concluded that the hearing violated the driver’s due
process rights because the hearing officer, who was directed by
department policy to do so, acted as both an advocate and
adjudicator. (Id. at pp. 212-213; see also Kazelka v. Department
of Motor Vehicles (2025) 109 Cal.App.5th 1239, 1255-1256
[following Knudsen in a case involving a pre-California DUI
Lawyers administrative hearing and finding no due process
violation].)

      Subsequently, two courts have applied Knudsen’s approach
to the cases of drivers whose hearings took place after the
department cured its policy. (See Clarke v. Gordon (2024) 104
Cal.App.5th 1267, 1271, 1276 (Clarke); Romane, supra, 110
Cal.App.5th at pp. 1020.) The courts recognized the distinction
between investigation and advocacy. (Clarke, at p. 1276;
Romane, at p. 1013.) But, citing Knudsen, the courts assessed
the hearing officer’s behavior to determine whether he or she
acted like an advocate. (See Clarke, at p. 1266; Romane, at p.
1016.) Thus, this new due process test turns on how the
reviewing court categorizes, or labels, the hearing officer’s
actions—i.e., either advocacy or not advocacy.

       Clarke, supra, 104 Cal.App.5th 1267, is a good example. At
the outset of the driver’s administrative hearing, the hearing
officer stated that, in the wake of California DUI Attorneys, the
department changed its policy to clarify that hearing officers

                                15
would not also serve as advocates. (Id. at p. 1271.) But Clarke
examined the record and found that the hearing officer acted as
an advocate by offering the department’s exhibits into evidence,
overruling the driver’s objections, and “rigorously cross-
examin[ing]” him. (Id. at p. 1277.) The court also expressed
doubt that any combination of functions would be constitutional:
“We are hard pressed to imagine how a single [department]
employee might discharge multiple functions during [a
department] hearing in a manner that will satisfy due process
requirements.” (Id. at p. 1277.)

       Justice Delaney dissented. He agreed that the court must
determine whether the hearing officer “acted as both an
adjudicator and an advocate.” (Clarke, supra, 104 Cal.App.5th at
p. 1278 [dis. opn. of Delaney, J.].) But he believed that the
hearing officer had acted as a factfinder. He noted that cases like
Today’s Fresh Start allow an individual hearing officer to
marshal, identify, and present relevant evidence. (Clarke, at p.
1278.) He also concluded that the hearing officer’s cross
examination was “within her proper limited role as a fact finder”
because it merely clarified the witness’s contradictory testimony.
(Ibid.)

      Romane applied the same test but, on the facts, found no
advocacy. (See Romane, supra, 110 Cal.App.5th at pp. 1016-
1019.) Contrary to the Clarke majority, the court concluded that
introducing documents routinely provided by law enforcement
was consistent with collecting and developing evidence rather
than advocating for the department. (Romane, at p. 1018.)

      Respectfully, we believe that the Clarke approach
contradicts our Supreme Court’s precedent.

      Under Clarke, the focus is on appearances rather than
disqualifying interests. The court scrutinizes the adjudicator’s
actions and characterizes them as advocacy or not advocacy. If it
looks like advocacy, the implication is that the adjudicator
                                16
appeared to favor the department. But the court never identifies,
or analyzes evidence of, any circumstances that would tempt an
average adjudicator to favor the department. (See Cowan, supra,
50 Cal.4th at p. 457.) The department instructs its hearing
officers not to favor either side. The Clarke test effectively
discards the presumption of “honesty and integrity in those
serving as adjudicators.” (Withrow, supra, 421 U.S. at p. 47.)
And, as Clarke and Romane illustrate, it would expose almost
any administrative hearing to judicial micromanagement,
turning the due process clause into a universal disqualification
standard rather than a fail-safe. (See Freeman, supra, 47 Cal.4th
at p. 1005.)

       This is not to suggest that the adjudicator’s actions are
irrelevant to unconstitutional bias claims. Theoretically, for
example, an adjudicator’s conduct might evince a personal bias
against a driver. But that requires a disqualifying interest and
extraordinary facts. (See Nieves, supra, 11 Cal.5th at pp. 486-499
[rejecting due process claim where the judge asked the defense
expert “argumentative” questions, disparaged defense counsel,
and demeaned defense witnesses; the court’s conduct was “highly
inappropriate” but “did not convey an interest in [the]
defendant’s conviction or sentence”].) Absent extraordinary facts,
we are skeptical that a court can accurately detect favoritism of
an unconstitutional magnitude from the way that an adjudicator
examined a witness, much less from a routine task like
introducing relevant documents into evidence. (Cf. Andrews v.
Agricultural Labor Relations Board (1981) 28 Cal.3d 781, 796
(Andrews) [“ ‘total rejection of an opposed view cannot of itself
impugn the integrity or competence of a trier of fact’ ”], quoting
NLRB v. Pittsburg S. S. Co. (1949) 337 U.S. 656, 659; see also
People v. Farley (2009) 46 Cal.4th 1053, 1110 [explaining that a
trial judge’s numerous erroneous rulings against a party do not
establish judicial bias].)


                               17
       Adjudicators need some latitude to do their jobs. It is part
of the job of judging to control the proceedings, ask probing
questions, and develop and express opinions about the facts
based on the evidence. (See People v. Guerra (2006) 37 Cal.4th
1067, 1111, disapproved on another ground in People v. Rundle
(2008) 43 Cal.4th 76, 151; Today’s Fresh Start, supra, 57 Cal.4th
at p. 230; Andrews, supra, 28 Cal.3d at pp. 795-796.) Without
running afoul of the due process clause, an adjudicator may
express “skepticism” (People v. Banks (2014) 59 Cal.4th 1113,
1175) or ask questions that “rais[e] whatever concerns weigh[]
most heavily” on her mind (Today’s Fresh Start, at p. 230).
Rather than showing bias, rigorous questioning may simply
reflect the adjudicator’s effort to “afford[] the [litigant] the chance
to allay those concerns.” (Ibid.) In response to inappropriate
courtroom conduct, an adjudicator may find it necessary to
reprimand or speak harshly to a participant in the proceedings,
without departing from her role as an impartial adjudicator.
(Guerra, at p. 1111.) This is ordinary behavior by adjudicators,
not the sort of extreme behavior that may indicate
unconstitutional bias. (See Freeman, supra, 47 Cal.4th at p.
1005.) Under the Clarke test, however, adjudicators will be
constantly looking over their shoulders, afraid of doing or saying
something that might be interpreted as advocacy.

      In sum, the Clarke approach invites courts to use the due
process clause routinely to regulate administrative hearings
based on appearances rather than a more rigorous appraisal of
risks and disqualifying interests that our Supreme Court has
long required.

                            DISPOSITION
      The judgment is affirmed.




                                  18
                                                BURNS, J.
WE CONCUR:


JACKSON, P.J.
CHOU, J.

Chi v. Department of Motor Vehicles (A172237)




                                       19
Superior Court of Alameda County, No. 24CV067384, The Hon.
Michael M. Markman, Judge.

Rodney Thomas Gould for Petitioner and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Supervising
Assistant Attorney General, Austin J. Cattermole, Supervising
Deputy Attorney General, and Edward Garcia, Jr., Deputy
Attorney General, for Respondent.




                              20