By Zach Arnold | July 24, 2016
The state of California abused due process and inflated a drug suspension against Bellator fighter Alexander Shlemenko for failing a steroid test, this according to Los Angeles Superior Court judge Robert O’Brien.
One year ago, the California State Athletic Commission in conjunction with the Department of Consumer Affairs and the Attorney General’s office (Jim Ledakis) administratively prosecuted Alexander Shlemenko on four different nine-month charges in order to construct a three-year steroid suspension. This suspension technique was unheard of for past California drug suspensions.
It was a classic case of disparate treatment in order to go after Shlemenko on moral grounds under the color of law. Shlemenko initially received one suspension notice and requested for an appeal in front of the Athletic Commission board. After requesting an appeals hearing, Andy Foster and the state of California increased the penalties for Shlemenko’s suspension to 3 years and a $10,000 fine. They gave Shlemenko only five days of notice of these increased penalties.
The California State Athletic Commission made it very clear during an acrimonious appeals hearing that they knew Shlemenko was going to file a petition in Los Angeles Superior Court for a writ of mandate to appeal the increased suspension of three years after he had appealed his initial drug suspension. Athletic Commission chairman John Carvelli, a major state dental political player (Liberty Dental) and point man for Governor Jerry Brown, railed against Shlemenko and his attorney Howard Jacobs:
“The commission has upheld the violations and the ruling of our Executive Officer. You did not come and ask to work with us. You did not come and present any mitigating circumstances or information for us to consider. You chose to have an attorney come and lay down a bunch of conclusions and accusations and propositions on processes and missing samples. Perhaps it may have not been the best, and I’m giving you my subjective analysis now, best way to approach this body. You certainly have your rights in a court in law. I wish you all the best.
Shlemenko was forced to file a writ of mandate and pay all of the attorney fees up front in order to fight the state of California for abusing his due process rights. Most fighters do not have the financial means to pay that kind of a bill. Last week, Los Angeles Superior Court judge Robert O’Brien issued a seven page ruling that slapped down the state of California for knowingly abusing Shlemenko’s due process rights in order to make a moral statement about his drug suspension. Judge O’Brien hammered Andy Foster, John Carvelli, Gary Duke (DCA), and Jim Ledakis (AG):
In their initial letters imposing discipline, the Commission stated that Petitioner’s license was suspended for the remainder of its term, or until February 28, 2016 (i.e. just under one year), and imposed fines totaling $10,000. The Commission, after a hearing, eventually imposed a three-year suspension in addition to the fines.
Petitioner argues that this violated “fundamental administrative principles” because the Commission increased the punishment following his appeal. The Commission counters that the imposition letters did not create a penalty “ceiling”, rather, the Commission was free to increase or decrease the penalty at will. The Court agrees with Petitioner’s contentions.
Petitioner has not identified any authority requiring the precise penalty to be disclosed. However, at least one appellate decision has held that a court can vacate administrative penalties where there has not been fair and adequate notice. See Tafti v. County of Tulare (2011) 198 Cal. App 4th 891, 901. The Court agrees that under the circumstances of this case, it violated Petitioner’s due process rights to increase the proposed penalty by three years. Petitioner could not have known that by appealing the suspension of his license he was reopening the issue of the length of suspension. The Commission does not cite any authority or precedent that would allow them to increase the penalty from the original term of approximately one year. Indeed, a three-year penalty was not even discussed until the closing briefs on the penalty issue, and by that time Petitioner was unable to respond. Accordingly, the Commission violated Petitioner’s due process rights by imposing a suspension that was longer than originally noticed.
Shlemenko will be eligible to fight in the United States. He had been fighting overseas while being suspended by California.
Two weeks ago, Andy Foster received a raise to a little over $120,000 by the Department of Consumer Affairs and the state of California (level H for Exempt employees).