Mohilef v. Janovici (51 Cal. App. 4th 267, 1996)

Opinion

MASTERSON, J.

This case presents the principal question of whether, in an administrative proceeding brought by a municipality to abate a public nuisance, the due process clauses of the state and federal Constitutions require that the offending property owner receive a full, judicial-type hearing.

We hold that due process is satisfied as long as the property owner receives adequate notice of the nature of the alleged nuisance and a meaningful opportunity to respond to the charges against him. It is not necessary that he receive the full panoply of procedural protections accorded in a judicial trial, such as the ability to cross-examine witnesses under oath, to subpoena witnesses, or to engage in discovery.

Background

David and Monica Mohilef own a 7.5-acre ranch located within the gated community of Montería Estates in the Chatsworth area of the City of Los Angeles (the City). The Mohilefs have lived on the property since purchasing it in 1977. The ranch consists of a single-family dwelling, a bam, bird pens, an aviary shelter, and what the City describes as an “ostrich farm.” The properties adjoining the ranch are developed with two-story single-family dwellings.

For at least four decades, David Mohilef (Mohilef) has been engaged in the business of importing, buying, and selling domestic and exotic animals.

He owns or has an ownership interest in several commercial entities that import, breed, and sell various animals and birds. Mohilef has participated with educational and research institutions throughout the world in researching genetics, the protection of endangered species, and ecological issues such as efficient land use, world hunger, and food production for the next century.

In 1994, Mohilef was involved with businesses related to ostriches and emus—birds belonging to a group known as ratites. These business enterprises operated 12 separate facilities throughout Los Angeles County (other than the Mohilef ranch) to house and maintain ostriches and emus for commercial purposes. When birds were either bom or brought into one of the commercial establishments with which Mohilef was involved, he sometimes selected the best of them from a genetic viewpoint and brought them to the ranch. There, he would watch their development, looking for traits that would improve the breed.

As of July 1994, Mohilef was attempting to develop a better quality bird and was researching the appropriate density at which ostriches and emus could be raised. Through his research, Mohilef hoped to show that the birds could be raised for food in a high density environment, saving valuable pasture land and rain forests. As Mohilef put it, “I’m trying to see how many I can raise on an acre where I’ll get 65 to 75 pounds of prime meat [and] 14 square feet of hide.” For that purpose, he maintained approximately 400 ostriches and 400 emus at the ranch. The birds were not owned by Mohilef directly, but by several commercial entities in which he had a minority interest. He received the birds while they were chicks and kept them until they were eight to ten months old, at which time they were shipped to one of his commercial facilities. Mohilef did not receive any compensation for keeping the birds at the ranch or for the use of his property. His commercial enterprises paid for the care and feeding of the birds. A staff of 13 people were employed full time at the ranch to keep the property clean and sanitary and to tend to the birds and other animals.

In May 1994, the Mohilefs received a notice from the office of the City zoning administrator, informing them that on July 11, 1994, a public hearing would be held concerning the operation of the ranch. The notice stated that the zoning administrator “may impose conditions regarding the use of the site as a commercial bird farm in order to mitigate any land use impacts caused by the use.” The public was also invited to submit written comments before the hearing.

The notice further stated: “There have been allegations that commercial bird farming activities are being conducted at the subject location which . . . constitute] a public nuisance. The location has generated numerous complaints from residents of surrounding properties regarding the commercial raising and keeping of animals such as ostriches, emus, and llamas. These complaints include that there are approximately 600 ostriches at the location and that the animal waste generated has an overwhelming odor which permeates the area. Further, there is concern that the dried animal feces when pulverized become airborne and are deposited on adjacent properties which has resulted in physical damage and may harbor organisms which may cause illness in humans and/or animals.”

Finally, as authority for the hearing, the notice stated, “[t]he Office of Zoning Administration has the authority to impose additional conditions on the operation of the commercial bird farm under Section 12.21-A, 15 (nuisance by any commercial or industrial use) of the Los Angeles Municipal Code.”

In a staff report dated June 6, 1994, the office of zoning administration described the complaints against the Mohilefs’ bird farming activities and the nature of the surrounding properties. In addition, the report noted that the office had received 11 letters opposing the presence of ratites on the Mohilef ranch. The report also commented that “[w]hen staff investigated the subject site the farm was relatively clean and well maintained . . . [and] the odor did not seem as pervasive as was stated in the complaint letters in the file.”

Among the letters received by the office of zoning administration, one stated in part: “As a physician who lives in the area . . . , I am concerned about the stench and dust raised by 600 crowded ostriches on a small parcel of land. This fine dust can carry particles that will aggravate asthma and spread fungal illnesses such as coccidioidomycosis . . . .” Another letter commented that “the presence of these birds has changed my back yard from a pleasant garden and pool retreat into what looks like the bottom of a bird cage that hasn’t been cleaned in weeks. No amount of daily care can keep the many thousands of feathers which blow my way from blanketing my yard, gardens, and pool.” One couple wrote the zoning administrator, saying, “We cannot tolerate the outrageous stench from the animal waste that permeates our noses and throats, and causes us considerable discomfort and health risks.”

On June 17, 1994, in connection with the upcoming public hearing before the zoning administrator, the Mohilefs filed a petition for writ of mandate in the trial court, seeking to compel the City to issue witness subpoenas and to permit prehearing discovery. The Mohilefs alleged that the due process clauses of the state and federal Constitutions (Cal. Const., art. I, § 7, subd. (a); U.S. Const., Amend. XIV) required such prehearing procedures. The trial court denied the petition for failure to exhaust administrative remedies.

On July 11, 1994, a public hearing was held before Associate Zoning Administrator Daniel Green (the AZA). At the beginning of the hearing, the AZA told the audience:

“Your job is to tell me what you think about the issues that are raised regarding the Mohilef Farms property. The purpose of the hearing is to get your input so that I can make a proper decision. If you’re speaking in favor or in opposition to what’s going on, you’ll each have a chance to speak.

“We have a court reporter to my left. Please for the benefit of the court reporter speak loudly enough so that she can hear you, and slowly and distinctly so she can report properly what’s being said today. I’ll ask each person that speaks today to come to the podium here, state your name, either your home address, your business affiliation, attorney affiliation, at least so we’ll know who you are.

“There will be no swearing in, there will be no oaths. ... To the extent we can keep this more informal than formal, I would appreciate it. I would appreciate if people did not repeat themselves. So if somebody says what you were going to say, you don’t need to say it again. When it’s your turn to speak, you can indicate that it’s basically been said.

“. . . You all got copies of the hearing notice, I presume, or have heard from neighbors who have received copies. I’ve reviewed the file, what’s in here to date. And I know various parties have also reviewed the file. There are letters from attorneys on both sides of this issue. There are many letters from residents of Montería Estates or adjoining Montería Estates.

“I have photographs of the site. I have been to the site this morning. . . . There has also been a formal request that there be cross-examination of certain statements that people make to determine the validity or the veracity of those statements. And generally speaking, that’s not done in these quasi-judicial hearings. . . .

“However, because of the level of emotion and economics that are at stake, I will try to provide an avenue for questions to be asked. They will not be asked as you see in a trial court where questions are posed to witnesses who sit in a box near the judge and so forth. But those questions can be asked by those persons who wish to ask them, direct to me. And if those persons who would have the answers or the responsibility for answering choose to answer, then I would suggest that if you’re able to take notes, those of you who want to respond, you may do so, but I can’t order you to respond to any questions.

“My concern in this regard is that we don’t go on and have question and response and then counter question and counter response, and we’ll be debating back and forth all day long. I’m not going to put a time limit on any speaker at this point. . . .”

After the AZA’s introductory remarks, approximately 19 witnesses (18 residents and an attorney representing one of them) spoke against the presence of ostriches and emus on the Mohilef ranch. One neighbor described the “stench” from the birds as “overpowering” and stated that the odor had prevented her family from sitting outdoors or enjoying their swimming pool. Another resident likened the odor to an overflowing cesspool. One witness complained about the “feces-filled dust [that] coat[s] the water in our pool and clog[s] our lungs.” Another stated that ostrich feathers “are in my yard, in my screens, all over the house. Should I open the door and walk out, they come in with me. . . . It’s a daily blanketing of that.” There was also testimony that the presence of the birds had made it difficult or impossible to sell nearby properties. More than one witness blamed the birds for causing a variety of illnesses, such as sinus infections and respiratory conditions. The gist of the testimony was that the odor of the birds was intolerable and that their presence had substantially curtailed the outdoor activities of many residents and had adversely affected the physical or psychological health of several neighbors.

Following the testimony of these witnesses, the Mohilefs’ attorney addressed the AZA. He challenged the credibility of several witnesses, claiming that they had their own “nefarious agendas,” which he described witness by witness. Next, Mohilef himself spoke, discussing the operation of the ranch and his efforts to contain odors and keep the property sanitary. Finally, the Mohilefs presented the testimony of Jay Stem, an employee of Applied Biogenics, Inc., an environmental forensic chemistry company they had retained. Stem substantiated the neighbors’ complaints about the existence of an unpleasant odor, but stated that the smell came from several sources, including livestock located on the property of others and methane emissions from a nearby lake. Stem also submitted a written report outlining his testing methods and conclusions.

Toward the end of the hearing, Richard Felosky, an employee in the City’s department of animal regulation, testified about the prior permits issued to Mohilef for various animal uses on the ranch and about zoning laws in general as they applied to animals. Felosky also stated that Mohilef was operating a commercial ostrich farm at the ranch for which he had a permit application pending. Felosky indicated that the Mohilefs’ ostrich farm was the largest one of which he was aware.

The final witness, Thomas Stevens, was a principal building inspector with the City’s department of building and safety. He testified that it was unclear whether City law permitted an ostrich farm in an “A-l” zone. Stevens also mentioned that he had inspected the Mohilef ranch on three occasions in 1994 (March 1, April 13, and May 19).

The AZA allowed the Mohilefs’ attorney to question both Felosky and Stevens. In response to that questioning, Felosky stated that, with the exception of the pending permit applications, all of Mohilef’s prior applications—“for hundreds of animals”—had been approved. As for Stevens, he was asked about the condition of the ranch based on his on-site inspections. He replied: “To be honest with you, I was impressed by the cleanliness of the area. I’ve seen a lot of boarding stables that are a lot worse. I was surprised by the large number of animals on the property.”

On July 29,1994, the AZA issued his determination, finding that “the past operation of the keeping of ratites (emus and ostriches) has adversely affected the health, peace or safety of persons in the surrounding area, has jeopardized or endangered the public health or safety of such persons, constitutes a public nuisance, and has resulted in repeated nuisance activities.” (Boldface in original.) This determination, according to the AZA, was “[b]ased upon the oral and written testimony as a result of the public hearing on this matter, including letters, photographs and correspondence in the case file, and the Staff Report.” Included among the AZA’s specific findings of fact were the following: “Due to the winds which affect this area throughout the year, the odor of feces and urine from the ratites carries beyond the abutting properties. These winds also ... are prone to distributing fecal matter and feathers into the air where they are deposited on other properties. . . . [<]] . . . When persons must close the windows of their dwellings and curtail both passive as well as recreational events on their property, their physical and mental health is obviously affected. The psychological [effect] of being a prisoner in one’s own home should not be underestimated . . . .”

In reaching his decision, the AZA rejected the Mohilefs’ attack on the credibility of certain witnesses at the public hearing, stating: “The lengthy testimony at the public hearing and letters in the case file between neighbors and [Mohilef] in the months preceding the hearing constitute either a reasonable basis on which to conclude that the nuisance impacts are not imagined or reflect mass collusion by the neighbors based upon some unspoken grudge or personal agenda. [The Mohilefs’] attorney made the latter representations at the hearing relative to some neighbors but did not suggest any motivation as to why the neighborhood at large would jettison its good conscience and gang up against his client. In this regard, I can only conclude that the specificity of the cited incidents by a variety of persons who appear of sound mind and demeanor is more believable than the operator of the subject bird farm . . . .”

To abate the nuisance, the AZA imposed several conditions on the Mohilefs, including reducing the number of ratites to 195 and implementing a plan for the prompt removal, containment, and disposal of ratite feces. The Mohilefs were also required to pay $4,052 to reimburse the City for the cost of the administrative proceeding.

The Mohilefs appealed the AZA’s decision to the City’s board of zoning appeals (the Board). In their appeal, the Mohilefs asserted that the AZA had violated their due process rights by refusing to let them cross-examine and subpoena witnesses and by failing to require testimony under oath. The Mohilefs also asserted that the AZA’s findings and conclusions were not supported by competent evidence.

On October 4, 1994, in accordance with City law (L.A. Mun. Code, §§ 12.21A.15(b), 12.28A.5), the Board held a public hearing on the Mohilefs’ appeal. At the beginning of the hearing, Associate Zoning Administrator Green briefly explained the basis of his decision. He acknowledged that “[Mohilef] has pointed out numerous alleged deficiencies, including, for example, not swearing in witnesses, which is not a practice of this department, nor of the City Council; and the right to cross-examine. And I provide the same comment, that the City Council does not do that. So we’re not compelled . . . to do the same.”

After the AZA’s comments, the Mohilefs’ attorney requested that witnesses be placed under oath before testifying at the hearing. The Board’s chairman denied that request, stating: “Your point is that you would like to have sworn testimony. You would like to have the procedures that are followed in superior court, okay; correct? [U ... [ID This court is not designed for that. This is basically a lay board. This isn’t filled with lawyers. We don’t have evidentiary procedures. We have the rules set up by the— very general rules set up by the city ordinances, and we work within that framework.” With this procedural issue resolved, the Mohilefs’ attorney addressed "the merits of the appeal, urging the Board to overturn the AZA’s decision.

After the Mohilefs’ attorney concluded his remarks, approximately 17 witnesses testified against the appeal. In large part, the testimony reflected the same concerns and problems presented by neighbors at the hearing before the AZA.

On October 20, 1994, the Board issued its decision, affirming the findings of the AZA, but modifying the conditions he imposed by ordering that the number of ratites be reduced to zero. The Mohilefs appealed the Board’s decision to the city council. However, the council did not act on the appeal within the time period fixed by law, which rendered the Board’s decision “final and conclusive.” (L.A. Mun. Code, § 12.28A.9(c); see id., § 12.21A.15(b).)

In April 1995, the Mohilefs amended their previously filed petition for writ of mandate to allege that (1) the City had violated their right to procedural due process in the hearings before the AZA and the Board by denying them the right to subpoena and cross-examine witnesses, to engage in discovery, and to obtain testimony under oath, and (2) the AZA and the Board had abused their discretion in ordering the removal of ratites from the ranch. After considering the parties’ memoranda of points and authorities and oral arguments, the trial court denied the petition by minute order. In August 1995, judgment was entered in favor of the City and the other defendants. (See fn. 8, ante.) The Mohilefs filed a timely notice of appeal.

Discussion

The Mohilefs argue on appeal, as they did throughout the administrative proceeding, that due process entitled them to several procedural protections which they did not receive. We conclude that due process was satisfied because the City provided the Mohilefs with notice of the basis for the nuisance abatement proceeding and with a meaningful opportunity to be heard on the matter.

The Mohilefs also raise several challenges to the merits of the decisions by the AZA and the Board. We find no error in the AZA’s decision but conclude that the Board erred in reducing the number of ratites to zero.

A. Due Process Protections

Whether we treat the petition below as one for traditional mandate (Code Civ. Proc., §§ 1084-1094) or administrative mandate (id., § 1094.5), the standard of review is the same. Because the Mohilefs’ contention regarding procedural matters presents a pure question of law involving the application of the due process clause, we review the trial court’s decision de novo. (See Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1348-1350 [49 Cal.Rptr.2d 238]; Jefferson v. Compton Unified School Dist. (1993) 14 Cal.App.4th 32, 37-38 [17 Cal.Rptr.2d 474].)

As a prerequisite to invoking the protections of the due process clause, the Mohilefs must establish a constitutionally protected property interest in keeping ostriches and emus on their ranch. (See Board of Regents v. Roth (1972) 408 U.S. 564, 571 [33 L.Ed.2d 548, 557, 92 S.Ct. 2701]; Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1160 [26 Cal.Rptr.2d 217, 864 P.2d 488].) Given that the Board precluded the Mohilefs from keeping a single ratite on the ranch, the property interest at stake is not the maintenance of an “ostrich farm,” nor is it an interest in having several hundred ratites on the ranch. Rather, it is an interest in keeping at least some ratites on the property. In light of the Mohilefs’ ownership interest in the ranch and the fact that Mohilef partially owns the ratites through his commercial ventures, the City’s nuisance abatement proceeding sufficiently implicates a protected property interest. (See Traverso v. People ex rel. Dept, of Transportation, supra, 6 Cal.4th at pp. 1160-1161 [discussing types of property interests protected by due process].)

Moreover, as set forth in the Los Angeles Municipal Code, the uses permitted in an “A-l” agricultural zone appear to include the keeping of some ratites on the property. The code permits the use of aviaries (L.A. Mun. Code, § 12.05A.6) and also authorizes “[t]he keeping of equines, bovines, goats or other domestic livestock . . . [and] [a]ny other similar uses or enterprises customarily carried on in the field of agriculture and not obnoxious or detrimental to the public welfare” (id., §§ 12.05A.7, 12.05A.9, italics added). Thus, the Mohilefs had a protectible property interest in keeping some ratites on the ranch and were entitled to due process safeguards in the administrative process.

Having decided that the due process clause applied to the City’s nuisance abatement proceeding, we must now determine what process was due. “Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [156 Cal.Rptr. 718, 596 P.2d 1134]; see also Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428-430 & fn. 5 [71 L.Ed.2d 265, 272-273, 102 S.Ct. 1148] [due process requires adequate notice and meaningful opportunity to be heard].) “However, there is no precise manner of hearing which must be afforded; rather the particular interests at issue must be considered, in determining what kind of hearing is appropriate. A formal hearing, with full rights of confrontation and cross-examination is not necessarily required.” (Saleeby v. State Bar (1985) 39 Cal.3d 547, 565 [216 Cal.Rptr. 367, 702 P.2d 525].) “ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts.” (Hannah v. Larche (1960) 363 U.S. 420, 442 [4 L.Ed.2d 1307, 1321, 80 S.Ct. 1502], quoted with approval in In re Love (1974) 11 Cal.3d 179, 190, fn. 11 [113 Cal.Rptr. 89, 520 P.2d 713].)

As our Supreme Court stated in People v. Ramirez (1979) 25 Cal.3d 260 [158 Cal.Rptr. 316, 599 P.2d 622] (hereafter Ramirez): “[T]he extent to which due process [protections] will be available depends on a careful and clearly articulated balancing of the interests at stake in each context. In some instances this balancing may counsel formal hearing procedures that include the rights of confrontation and cross-examination, as well as a limited right to an attorney. ... In others, due process may require only that the administrative agency comply with the statutory limitations on its authority. . . .

More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Id. at p. 269, citations omitted, italics added; followed in In re Malinda S. (1990) 51 Cal.3d 368, 383 [272 Cal.Rptr. 787, 795 P.2d 1244].) A similar balancing test was adopted by the United States Supreme Court in Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 33, 96 S.Ct. 893](hereafter Mathews).

As to the first Ramirez factor, we believe that the Mohilefs’ interest in keeping some ratites on their property is an important one. Regardless of whether the birds are being used as part of a scientific study, commercial enterprise, personal hobby, or some combination thereof, the Mohilefs have a valid interest in using their property free from unreasonable or arbitrary governmental interference. (See Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 551-552 [48 Cal.Rptr.2d 778, 907 P.2d 1324]; McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595, 600-601 [122 P.2d 543, 139 A.L.R. 1188].)

At the same time, however, Mohilef does not contend that the abatement of the alleged nuisance (i.e., the removal of the ratites) will adversely affect his business opportunities or his livelihood. Nor does he claim that he or his commercial ventures will incur any economic losses if the birds are moved elsewhere. Indeed, Mohilef eventually sends all of the birds to one of his commercial facilities (when they reach the age of eight to ten months). Further, the City’s action will not require that the ranch—the land or the improvements—be altered or modified. At most, the Board’s decision will simply bring an early end to Mohilefs “density study” and require that he pay the costs incurred in connection with the administrative proceeding. Consequently, the Mohilefs’ interest is not as significant as it otherwise might be if, for example, the abatement proceeding threatened to permanently shut down an existing business concern.

In light of the Mohilefs’ legitimate interest in keeping ratites at their ranch, we now apply the remaining Ramirez factors in deciding whether the City deprived them of any procedural protections demanded by the due process clause. In doing so, we heed these cautionary words from a leading authority on administrative law: “The complicated nature of the cost-benefit analysis required by the Mathews test raises serious questions concerning the competence of judges to apply that test. Legislatures and agencies have significant comparative advantages over courts in identifying and measuring the many costs and benefits of alternative decisionmaking procedures. Thus, while it is imperative that courts retain the power to compel agencies to use decisionmaking procedures that provide a constitutionally adequate level of protection . . . , judges should be cautious in exercising that power. In the vast bulk of circumstances, the procedures chosen by the legislature or by the agency are likely to be based on application of a Mathews-type cost-benefit test by an institution positioned better than a court to identify and quantify social costs and benefits. A court should give serious consideration to second-guessing a legislative or agency choice of procedures only when it has indications that the agency or legislature chose its procedures in bad faith or without considering the implications of its choice of procedures. . . . Lawyers and judges have a systematic tendency to overestimate the benefits of trial-type procedures and to underestimate the costs of those procedures.” (2 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) §9.5, p. 61.)

As the United States Supreme Court has explained: “The ultimate [question] involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. We reiterate the wise admonishment of Mr. Justice Frankfurter that differences in the origin and function of administrative agencies ‘preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts.’ . . . The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances. The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’ . . . All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard’ ... to insure that they are given a meaningful opportunity to present their case. In assessing what process is due . . . , substantial weight must be given to the good-faith judgments of the [agency] that [its] procedures . . . assure fair consideration of the . . . claims of individuals.” (Mathews, supra, 424 U.S. at pp. 348-349 [47 L.Ed.2d at p. 41], citations omitted, italics added.)

1. Testimony Under Oath

Neither the AZA nor the Board administered an oath to witnesses who testified at the public hearings. The Mohilefs contend that the due process clause required sworn testimony. We disagree.

The requirement of a testimonial oath was firmly embedded in the common law and has long been a part of our judicial system. (Wright & Gold, Federal Practice and Procedure (1990) §6041, pp. 254-261 [discussing history of oath]; Note, A Reconsideration of the Sworn Testimony Requirement: Securing Truth in the Twentieth Century (1977) 75 Mich. L.Rev. 1681, 1684-1698 [same].) In contrast, the use of an oath is not of similar historical importance in administrative proceedings. (See, e.g., Brousseau v. United States (1981) 640 F.2d 1235, 1241-1242 [226 Ct. Cl. 199]; Baker v. City of Detroit (E.D.Mich. 1979) 483 F.Supp. 919, 928, affd. (6th Cir. 1983) 704 F.2d 878 mod. on rehg. 712 F.2d 222.)

Accordingly, in Broussard v. Regents of University of California (1982) 131 Cal.App.3d 636 [184 Cal.Rptr. 460], the First District Court of Appeal concluded that the due process clause did not mandate sworn testimony in an administrative hearing. In that case, the petitioner, an employee of the University of California, San Francisco, was terminated for absenteeism. She challenged the termination before a university hearing committee, which allowed witnesses to testify without being sworn. The administrative process resulted in a decision in favor of the university. The petitioner sought a writ of mandate from the superior court, arguing that the lack of sworn testimony violated her right to due process. The trial court denied the petition. The Court of Appeal affirmed, stating: “Applying the balancing test in Mathews, we find that appellant has an important interest in her continued employment and that it would be a small burden to require oaths to be administered. Militating against this additional requirement is the University’s policy to minimize formalities. ... In light of these conflicting policies, the overriding concern is whether appellant risked erroneous deprivation of her job through the procedures employed. . . . We conclude that she suffered no such risk. FJD At the evidentiary hearing appellant, through her counsel, was able to introduce exhibits, examine documents introduced by the University, cross-examine adverse witnesses, introduce favorable testimony—which she declined to do—and argue her case to the Committee. [^Q The evidence was never in dispute. . . . The sole question presented to the Committee was whether the University was justified in terminating appellant .... The University’s witnesses could not be described as self-interested with a motive to testify untruthfully.” (Id. at p. 641, citations omitted.)

Similarly, in Flagstad v. City of San Mateo (1957) 156 Cal.App.2d 138 [318 P.2d 825], a city council granted a zoning variance to a property owner after a public hearing at which witnesses provided unsworn testimony. An adjoining property owner sought a writ of mandate in superior court to invalidate the variance. The trial court issued the writ, in part because the council had not required testimony under oath. The Court of Appeal reversed, noting: “[I]t is clear that witnesses in a council proceeding of this sort need not be sworn . . . .” (Id. at p. 141, citation omitted.)

In Jackson v. City of San Mateo (1957) 148 Cal.App.2d 667 [307 P.2d 451], the city approved an application for a use variance after holding a public hearing on the matter. The plaintiffs filed suit, seeking to set aside the city’s decision on the ground that “. . . the witnesses appearing before the planning commission and the city council were not sworn.” (Id. at p. 669.) To this challenge, the Court of Appeal responded, “There is no such requirement.” (Ibid.)

Federal courts have reached the same conclusion. In Potemra v. Ping (S.D.Ohio 1978) 462 F.Supp. 328, the court held that unsworn testimony was constitutionally permissible at an administrative hearing. There, the plaintiff, a tenured professor at Ohio University, was terminated for willfully neglecting his administrative and teaching duties. He challenged the termination before a faculty hearing committee, which conducted an informal hearing without placing witnesses under oath. The committee upheld the termination, and its decision was sustained by the board of trustees. The plaintiff filed suit in federal court, contending that the due process clause required the use of sworn testimony at the committee hearing. The court rejected this contention, explaining:

“The private interest involved here, the retention of a tenured teaching position, is very important. . . . The administrative burden upon the State of Ohio here is not significant. Given that a hearing is required as a due process minimum, the additional step of swearing witnesses should not be a practical burden. . . . The state’s interest, then, in avoiding the use of an oath in this case is the desire to prevent the hearing from becoming too formal and to retain the ‘peer group’ ambience.

“The remaining factor to be considered in the Mathews analysis is the effectiveness of the additional procedure in reducing the risk of an erroneous deprivation of a protected liberty or property interest. An oath certainly has some usefulness in this regard, or its use in all courts of law would be puzzling. The oath would appear to be especially useful as a vehicle for ascertaining the truth where issues of fact are fully and hotly contested. The trier of fact, in accepting one version of the facts, is virtually determining that the other side has not been truthful. Where witnesses are self-interested and the incentive to evade or shade the truth is high, the opposite incentive created by an oath may provide an appreciable safeguard for someone about to be deprived of a liberty or property interest. Especially where other procedural protections are lacking, the use of an oath could be important to the ultimate determination that minimal due process was afforded. . . .

“In the instant case, very few of the facts were wholly contested by the plaintiff. . . . The committee’s central concern was with the plaintiff’s justification for his actions, and, accordingly, whether that conduct was professionally acceptable. Few of the witnesses can even arguably be described as self-interested in the manner of a party witness in a civil trial, or a witness at an agency hearing who either seeks or is subject to that agency’s regulation. ... In sum, the Court is not convinced that the witnesses at this hearing were substantially more likely to testify untruthfully because no oath was administered. The lack of an oath in this case did not make this otherwise extensive evidentiary hearing fundamentally unfair or Constitutionally infirm.” (462 F.Supp. at pp. 334-335.) In other words, “the trial court [in Potemra] concluded that, notwithstanding plaintiff’s property interest in his faculty position and the minor administrative burden to administer an oath, the extensive evidentiary hearing provided the necessary due process safeguards.” (Broussard v. Regents of University of California, supra, 131 Cal.App.3d at p. 642, construing Potemra.)

As the federal district court recognized in Baker v. City of Detroit, supra, 483 F.Supp. 919, there is “no requirement that testimony be under oath .... Procedural informality is the hallmark of administrative proceedings as opposed to judicial proceedings.” (Id. at p. 928.) Other federal decisions are in accord. (See, e.g., Brousseau v. United States, supra, 640 F.2d at pp. 1241-1242 [written statements did not have to be sworn because “[i]t is settled that strict rules of evidence do not apply to administrative proceedings”]; Wool v. Maryland-Nat. Capital Park & Plan. Com’n (D.Md. 1987) 664 F.Supp. 225, 231 [absence of oath did not violate due process since board members were still able to judge credibility of witnesses]; Sinclair Oil Corporation v. Smith (S.D.N.Y. 1968) 293 F.Supp. 1111, 1115 [“Failure to administer oaths to witnesses and denial of an offer of proof are not necessarily denials of due process in the context of an administrative hearing.”].)

State courts outside California have also held that witnesses in an administrative proceeding need not be placed under oath. In Monte Vista Prof. Bldg., Inc. v. City of Monte Vista (1975) 35 Colo.App. 235 [531 P.2d 400], a group of physicians sought a zoning variance to open a pharmacy in their building. The city’s board of adjustment held a public hearing on the variance request, heard the unsworn testimony of witnesses, and denied the variance. The physicians filed suit, arguing that the board had acted unlawfully by accepting unsworn testimony. The trial court agreed and ordered the board to grant a variance. The Colorado Court of Appeals, reversed, stating:

“A hearing before a Board of Adjustment should be conducted in an orderly manner but need not strictly conform to the rules of procedure and evidence necessary in a judicial proceeding. . . . [I]t is generally recognized that proceedings in zoning matters are informal, the strict rules of evidence need not apply, and the basic requirement is that the principle]s of fundamental fairness be observed. [Citation.] Other jurisdictions have held that in the absence of a statutory requirement that witnesses be sworn, it is not error for an administrative body to hear testimony from unsworn witnesses. [Citations.]

“The record indicates that all parties were given an opportunity to be heard. The Board is not required to disregard the opinions and feelings expressed by neighbors and residents because they were not put under oath. In so holding we note that the city zoning ordinance does not require that witnesses be placed under oath at a public hearing. It would have been proper for the Board to have permitted only sworn testimony, but it did not err in failing to do so.” (35 Colo.App. at p. 238 [531 P.2d at pp. 401-402].)

In Matter of Stowman (1985) 200 N.J.Super. 507 [491 A.2d 1275], an employee of the New Jersey Department of Corrections received a five-day suspension for unsatisfactory job performance. At an administrative hearing to review the suspension, the employee’s request for sworn testimony was denied, and the hearing officer ultimately upheld the suspension. The employee then sought judicial relief, arguing that the hearing officer’s failure to require sworn testimony violated due process. The court rejected that contention on the grounds that “unless required by statute, rule or regulation, sworn testimony of witnesses in administrative proceedings need not be taken. . . . [