Guidelines for Final Appeals Panels

The Judicial Charter sets forth five bases for appeal:

1. Demonstration of a significant procedural error;
2. The availability of compelling new evidence;
3. Demonstration of bias on the part of a member of any Judicial Panel involved in the case;
4. Misconduct on the part of the Judicial Officer or the Judicial Advisor; or,
5. Demonstration that any right of the accused enumerated in the Judicial Charter have been violated.

The appellant must set forth each basis for appeal separately, stating the basis he or she is relying on, what facts support the existence of that basis for appeal, and how its existence is enough to warrant changing the outcome reached by the Judicial Panel. In other words, the appellant has the burden of demonstrating to the Final Appeals Panel that at least one of the bases for appeal was so significant that it affected the decision (or sanction/penalty assessment) of the Judicial Panel to the detriment of the appellant. If the appellant can make that showing, there are four remedial options available to the Final Appeals Panel. If the appellant cannot make that showing, the Final Appeals Panel must deny the appeal.

Thus, the Board on Judicial Affairs affirms that a Final Appeals Panel is not the proper forum for further fact-finding. The Final Appeals Panel inquiry begins with a presumption that the Judicial Panel’s findings of fact met the required standard of proof (beyond a reasonable doubt) and that the decision and sanction/penalty assessment was appropriate, based on those findings of fact.

In assessing the sufficiency of an appeal, the Final Appeals Panel should consider the written appeal, any response by the Office of Judicial Affairs, and any counter-response by the appellant. In addition, the Final Appeals Panel may, in its discretion, permit oral presentations by the appellant and the Office of Judicial Affairs and/or may ask either or both parties for clarification/amplification of issues relevant to the particular basis of appeal and may consider those oral presentations in reaching its decision.

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The following guidelines are designed to assist the Final Appeals Panel in assessing the sufficiency of a claim resting on each particular basis for appeal.

1. Demonstration of a significant procedural error

   1. Was there a procedural error?
   2. Was the procedural error “significant”?

      “Significant” denotes something reasonable, credible, of solid value ­ it may not be based upon simple dissatisfaction with the Judicial Panel’s decision and/or sanction/penalty recommendations.

   3. If there was a significant procedural error, is there a substantial probability that the Judicial Panel would have arrived at a different decision but for the error?

      “Substantial probability” means that, in light of all the evidence in the case bearing on the particular issue at hand, it is highly likely that the Judicial Panel’s decision would have been different but for the error. If the Final Appeals Panel finds the evidence to be so evenly balanced that it cannot conclude the Judicial Panel would have arrived at a different decision, the Final Appeals Panel must rule against the appellant, i.e., deny the appeal.

2. The availability of compelling new evidence

   1. Is there “new evidence”?

      “New evidence” means evidence that was not available to the student or not known or reasonably discoverable by the student at the time of the Judicial Panel hearing. Evidence does not become “new” at the appeals level if the student could have but did not – for whatever reason – present it to the Judicial Panel.

   2. Is the new evidence “compelling”?

      “Compelling” new evidence is evidence that is so essential to the case that there is a substantial probability that it would have affected the Judicial Panel’s deliberations had it been known at the time of the hearing.

   3. If there is compelling new evidence, is there a substantial probability that the Judicial Panel would have arrived at a different decision had it been aware of that evidence?

      “Substantial probability” means that, in light of all the evidence in the case bearing on the particular issue at hand, it is highly likely that the Judicial Panel’s decision would have been different had this compelling new evidence been timely available. If the Final Appeals Panel finds the evidence to be so evenly balanced that it cannot conclude the Judicial Panel would have arrived at a different decision, the Final Appeals Panel must rule against the appellant, i.e., deny the appeal.

3. Demonstration of bias on the part of a member of any Judicial Panel involved in the case

   1. What is the nature of the claimed bias?
   2. Given the type of bias alleged, has the appellant set forth objective facts demonstrating that a member of the Judicial Panel was biased?

      To show “bias,” the appellant must set forth objective facts that would lead a well-informed, thoughtful person to believe that the Judicial Panel member was incapable of being impartial.

   3. If yes, is there a substantial probability that the Judicial Panel would have arrived at a different decision but for that bias?

      “Substantial probability” means that, in light of all the evidence in the case bearing on the particular issue at hand, it is highly likely that the Judicial Panel’s decision would have been different but for the bias. If the Final Appeals Panel finds the evidence to be so evenly balanced that it cannot conclude the Judicial Panel would have arrived at a different decision, the Final Appeals Panel must rule against the appellant, i.e., deny the appeal.

4. Misconduct on the part of the Judicial Officer or the Judicial Advisor

   1. What specific duty does the appellant claim the Judicial Officer /Judicial Advisor failed to fulfill?
   2. Has the appellant set forth objective facts demonstrating that the Judicial Officer/Judicial Advisor did in fact fail to fulfill that duty?
   3. If yes, is there a substantial probability that the Judicial Panel would have arrived at a different decision but for the failure to fulfill that duty?

      “Substantial probability” means that, in light of all the evidence in the case bearing on the particular issue at hand, it is highly likely that the Judicial Panel’s decision would have been different but for the error. If the Final Appeals Panel finds the evidence to be so evenly balanced that it cannot conclude the Judicial Panel would have arrived at a different decision, the Final Appeals Panel must rule against the appellant, i.e., deny the appeal.

5. Demonstration that any right of the accused enumerated in the Judicial Charter have been violated

   1. What right does the appellant claim was violated?
   2. Has the appellant set forth objective facts demonstrating that his/her right was violated?
   3. If yes, is there a substantial probability that the Judicial Panel would have arrived at a different decision but for the violation?

      “Substantial probability” means that, in light of all the evidence in the case bearing on the particular issue at hand, it is highly likely that the Judicial Panel’s decision would have been different but for the violation. If the Final Appeals Panel finds the evidence to be so evenly balanced that it cannot conclude the Judicial Panel would have arrived at a different decision, the Final Appeals Panel must rule against the appellant, i.e., deny the appeal.

Judicial Charter limits to the Final Appeals Panel

The Judicial Charter limits the Final Appeals Panel to five options, four of which are remedial in nature. If the appellant fails to substantiate at least one basis of appeal, the only option available to the Panel is to deny the appeal. If the appellant has substantiated at least one basis of appeal and the Panel finds it is highly likely the Judicial Panel would have arrived at a different decision but for the error/violation, the Final Appeals Panel has four remedial options:

1. It can return the case to the original Judicial Panel;
2. It can convene a new Judicial Panel to rehear the case;
3. It can reduce the sanctions imposed by the Judicial Panel; or,
4. It can dismiss the original charges.

Please call (650) 725-2485 with any questions or requests for additional information.

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