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BELSINGER v. DISTRICT OF COLUMBIA

January 22, 1969

Donald K. BELSINGER, Plaintiff,
v.
DISTRICT OF COLUMBIA and James J. Kirchner, Saylor R. Garbrick, William Cox, William E. Ruffin, Jr., Irving T. Jones, Constituting the Members of the Electrical Board of the District of Columbia, Defendants



The opinion of the court was delivered by: GASCH

 GASCH, District Judge.

 Mr. Belsinger (hereinafter plaintiff) filed a complaint seeking to enjoin the Board from carrying out the suspension order. The cause came on to be heard on cross motions for summary judgment. For reasons set forth below, the Court denies plaintiff's motion for summary judgment and grants that of the defendants, the District of Columbia and the members of the Electrical Board.

 The Board's order setting the case down for hearing contained three separate charges and specifications applicable to all three. The first charged that plaintiff, while licensed as a Master Electrician Specialist, did electrical work without first obtaining a permit, in violation of § 6-131 of the Electrical Code of the District of Columbia (1963 ed.) and §§ 425 and 503 of the District of Columbia Electrical Licensing and Bonding Regulations. The second charged that while holding a Master Electrician Specialist's license which was limited to "Neon and Electric sign and cold cathode lighting from existing branch circuits overcurrent devices," plaintiff did electrical work (connecting electrical hookups on gas pumps for service stations) which exceeded the limitations of his license, in violation of §§ 503 and 802 of the Electrical Licensing and Bonding Regulations. The third charged plaintiff with having engaged in the business of an electrical contractor without having first obtained a contractor's license, in violation of the same regulations cited in the second charge. The thrust of these charges, as indicated by the accompanying specifications, is that at various times between the dates of February 24, 1967, and May 8, 1967, plaintiff installed and electrically connected gas pumps at various Sunoco service stations, pursuant to an agreement between Belsinger Maintenance Co. and the Sun Oil Company. It was further alleged that plaintiff had failed to get the requisite permits, and indeed would have been ineligible for them since his license did not entitle him to do the kind of work involved. A four-day hearing was held. The Board made findings of fact and conclusions of law substantially conforming to the charges and specifications.

 I. Plaintiff urges that he was deprived of due process. He argues that the action of the Board was procedurally defective in that certain pre-hearing statements indicated prejudgment, and ex parte communications between Board members and investigators, also prehearing, tainted the adjudication.

 Although the directives of the Administrative Procedure Act do not apply to an adjudicatory hearing by the District of Columbia Electrical Board, *fn1" it is equally clear that those sections of the Act which are merely descriptive of prior due process conceptions are constraints on the conduct of such hearings. In this regard, those charged with the responsibility of adjudicating liability under regulatory provisions carrying penalties for their violation, must be free from bias or prejudice towards the party to be judged. *fn2" The more difficult question is what specific acts or utterances will demonstrate bias or prejudice, assuming the decision reached is not patently unfair. In other words, what is required to satisfy the "appearance of justice." *fn3"

 The Court agrees that the question of when an official is disqualified to sit in judgment in a particular case is "one of the most difficult and delicate problems in judicial administration." *fn4" What is involved is due process. *fn5" There must be an impartial tribunal. But to assume that any tribunal approaches a cause completely devoid of predilections or initial reactions is unrealistic. *fn6" To nullify a ruling of a quasi-adjudicatory body on the basis of bias or prejudgment requires a substantial showing *fn7" of a "predetermined purpose to reach a determined end." *fn8"

 In order to hold that a public stance disqualifies a tribunal, a Court should find in the import of the words or actions either the likelihood or the appearance of likelihood that the minds of the members thereof are effectively foreclosed to reason and persuasion from one side. *fn9"

 The two leading cases where disqualification was resorted to are distinguishable from the instant case on this basis. In Texaco, Inc. v. F.T.C., 118 U.S.App.D.C. 366, 336 F.2d 754 (D.C. Cir. 1964), the Court held that Chairman Dixon had to disqualify himself because he made a speech in which he expressed great concern over an industry wide pattern of violations, and in which he named as violators those parties whose case the Board later heard and against whom the decision was rendered. It is apparent that one factor in the decision was the strong position taken by Chairman Dixon. The speech covered an area which he obviously considered crucial. The statements were made to a group encompassing members of the class of persons being rebuked. Chairman Dixon was telling members of an industry already under investigation that if they were not careful they would be in trouble, and that he knew the identity of companies that were already in trouble. Having taken this strong public position, Chairman Dixon had an interest in seeing it sustained which might have clouded his judgment. It should also be noted that in Texaco there was a ruling that the findings of the Commission were not supported by substantial evidence.

 The other case, American Cyanamid Co. v. F.T.C., 363 F.2d 757 (6th Cir. 1966), also involved Chairman Dixon. Prior to becoming a member of the Commission, Chairman Dixon had been counsel for a congressional subcommittee investigating certain business activities. While in this capacity, he wrote several letters and memoranda indicating vigorous feelings about certain violations that he concluded had been committed. It was held that under these circumstances he should not sit in judgment on the parties and issues which had been the subject of his investigations.

 Against this background the Court concludes that the statement made by the Board prior to the hearing contested here, does not indicate the type of prejudgment which under the law should result in disqualification. Although there are many instances where the Belsinger case is referred to by the Board, with only one exception, Belsinger's conduct is described as "alleged." The exception appears in the minutes of a meeting of the Board, July 17, 1967:

 
This meeting was held to discuss the possibility of suspending the license of Donald K. Belsinger.
 
After a general discussion the Board unanimously voted to hold a Public Hearing as a result of the flagrant ...

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