The law has many terms for the word “fairness,” including due process, good faith, neutral, and unbiased. And among the basic principles of fairness, the Latin maxim “nemo debet esse judex in propria causa” stands out. It provides, essentially, that no one should be a judge in their own case or in a case in which they have an interest.

This famous legal maxim was squarely addressed in a recent case of first impression, Lippman v. City of Oakland, __ Cal.5th__ (2018), where California’s First District Court of Appeal reversed a trial court decision that rejected a landowner’s challenge to a building code violation reviewed by a single hearing officer appointed by the same branch of the City that issued the disputed citation. The decision was originally filed December 22, 2017 and later certified for publication on January 22, 2018.

The case arose out of what appears to be a straightforward code enforcement process in which Oakland’s building services division alleged that a rental property owner maintained certain blight and substandard living conditions on his rental property. The property owner challenged the citations and sought administrative review. The building services division appointed an “outside” hearing officer who ultimately upheld the citations.

The trial court determined it did not have to reach the “difficult constitutional question” of whether the underlying issue was a matter of “statewide concern” where state law would regulate the City’s activity because it found no conflict existed in the first instance. The landowner’s appeal of that decision addressed the issue of whether the City’s administrative appeal process for challenging building services citations conflicts with the California Building Code and, if a conflict exists, whether the matter at issue is a “municipal affair” governed by the City’s municipal code or one of “statewide concern” governed by state law.

The landowner argued that his appeal should have been heard by an unbiased party, namely an appeals board or the Oakland City Council, as provided in section of the California Building Code, which requires every city or county to establish a process to hear and decide appeals of orders, decisions, and determinations made by the enforcing agency regarding the application and interpretation of the California Building Code. The same provision also requires the governing body of any city or county to establish a local appeals board to serve that purpose. And if no such board has been established, the governing body of the city or county shall serve as the appeals board. In contrast, the Oakland municipal code basically provides that any challenges to decisions of the building services division are to be scheduled before a single hearing examiner, whose decision is treated as final and conclusive.

The City contended that there is no conflict between its municipal code and state law, which the City asserted only requires establishing a “process” to hear and decide appeals and does not require an “appeals board.” The Court of Appeal readily disagreed and held that the “plain language” of the California Building Code requires local governments to establish an appellate process that may be satisfied in one of three ways:

  1. by creating a local appeals board for new construction and a housing appeals board for existing buildings;
  2. by creating an agency authorized to hear such appeals; or
  3. by having the governing body of the city serve as the local appeals board or housing appeals board.

The Court noted that the California Building Code does not contemplate an appeal before a single hearing officer but rather refers to an “appeals board.” The Court thus rejected the City’s position that the enforcing agency may hear appeals so long as it does not utilize any of its employees for that purpose, reasoning that it would require “a strained interpretation of the statutory scheme as a whole . . . .” The Court held that, “at a minimum, there is a mandatory duty to establish a local appeals board or an agency authorized to hear appeals. And, if no such board or agency exists, the governing body shall act as the local appeals board.” Accordingly, the Court concluded that the City’s municipal code conflicts with state law in providing for an appeals process that is inconsistent with the mechanism mandated by the plain language of the California Building Code.

The Court also rejected the City’s argument that its right to “home rule,” as a charter city with exclusive power to legislative over “municipal affairs,” overrides the California Building Code and its related statutory scheme. The Court noted that the legislature intended to preempt the field, which is evidenced by the fact that it carefully specified and prescribed the manner in which local authorities may adopt ordinances that vary from the uniform codes such as the California Building Code. “It makes little sense,” according to the Court, “to prescribe a narrow set of circumstances in which local entities can override state law if those entities are already free to do so with impunity.” Thus, the Court held that that “the Building Code and related provisions in the State Housing Law are general laws of statewide concern that are applicable to the City.”

Finally, the Court rejected the City’s argument that the appellate process set forth in the California Building Code is not sufficiently narrowly tailored to limit incursion on the City’s interests. Instead, the Court held that while the conditions leading to the landowner’s citations are indeed a local issue, the state “has an interest in protecting the basic rights of property owners. Thus, contrary to the City’s contention, it is a ‘sensible and appropriate’ allocation of state power to require compliance with the Building Code’s appeals board requirement.”

The Lippman decision addresses important procedural due process issues and conclusively establishes that landowners have a right to fair and impartial administrative appeals even of administrative or ministerial actions taken under the California Building Code. More importantly, the decision expressly recognizes the state’s overarching and critical interest in securing basic property rights, particularly when considering the fairness of any procedure that would affect those rights.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit