Civil Rights Organizations Question Legality of Schwarzenegger Administration Proposal to Remove Judges and Restructure the California Fair Employment and Housing Commission

CACCR is a statewide alliance of civil rights organizations, activists, educators, lawyers, and advocates who are dedicated to achieving a just and healthy society. The Coalition exists to increase the effectiveness of the civil rights community in California by bringing its members together to develop common priorities, share information, educate the public and facilitate the development of progressive public policy. Established in 1985, the CACCR is one of the oldest civil rights alliances in California.

CACCR has previously addressed the critical role that the Commission’s ALJ’s play in the enforcement of civil rights and the impact that their removal would have. Given the impact of that this removal would have, the Commission should do its utmost to carefully consider the consequences of its actions.

As an initial matter, the Commission should seek to ensure that any decision to remove its ALJ’s would not, at the very least, violate the underlying legislation that authorized the Commission to appoint its own ALJ’s. Numerous questions have been raised by members of the public as to the legality of any such action. These questions are well founded. The legislature enabled the Commission to appoint its own judges because of the “Major Problem” posed by the then current process of holding hearings within OAH (see Committee Report for 1991 California Assembly Bill No. 2392, 1991-92 Regular Session, Senate Committee on Judiciary, June 16, 1992). Removing these judges from the Commission and returning the hearings back to OAH would violate the spirit if not the letter of the legislation enabling such appointments. Given this possibility, why would the Commission not seek a legal opinion?

Secondly, the Commission should not complicity go along with Secretary Marin’s attempt to circumvent public accountability by bypassing the legislature in restructuring the hearing process. The legislature created the current hearing system. It should be involved in any restructuring of this system. The legislature, after all, provides a rigorous and structured forum for analyzing the proposed changes – a system that invites significantly more public input than virtually any other government decision making process, including the Commission’s own.

Finally, we hope that the Commission does not intend to make any decisions regarding this critical matter without notice sufficient to allow for full public participation. While the Commission does not have any future meetings scheduled for the remainder of the year (ostensibly because the Commission cannot form a quorum), CACCR urges the Commission to resist the urge to notice a meeting addressing this issue on an expedited schedule when and if an additional Commissioner is appointed.

In closing, we again urge the Commission to seek as much transparency and public participation as possible. We hope that you will not seek to avoid accountability or violate the public trust by proceeding with a decision that could be unlawful, foregoes the rigorous legislative process, and subverts or avoids public involvement.

Sincerely,

Jamienne Studley
Malcolm Yeung
Co-Chairs CACCR