Administrative Writ of Mandamus – What is it?

by Charles L. Post, Esq. and Eunice C. Majam-Simpson, Esq.

In 2017, we held a terrific program on Administrative Writs of Mandamus. Two of our speakers, Charles L. Post, Esq. and Eunice C. Majam-Simpson, Esq., created this terrific outline highlighting the things you need to know about what an Administrative Writ of Mandamus is and the process surrounding it.

If you are interested in knowing more about Administrative Hearings, we have a program on that topic this December 6th, 2018 in Sacramento at the Hyatt. You can find out more about that program here. (And if you are reading this post after that program was held, click on the link to order the audio package and see the testimonials). Our audio packages include all materials distributed at the program, and the PowerPoints.

Administrative Writ of Mandamus – What is it?

A.  What is it?

  1.  A method of obtaining judicial review of agency (public and private) decisions and actions.

B.  Two Types

1.  “Administrative Mandamus” under CCP §1094.5 et seq.

2.  “Traditional” or “Ordinary” Mandamus Pursuant to CCP §1084

C.  Uses and Prerequisites

1.  Challenge of an agency’s adjudicatory decision (a decision that concerns private rights or interests, when a hearing is required by law to be given before the agency that issues the decision).

2.  Prerequisites

–  Final agency decision

–  The decision resulted from a proceeding which was required by law

–  Evidence was required to be taken

–  Discretion in factual determinations is vested within the agency

–  “Agency” can mean both governmental and private organizations

D.  Goal of Administrative Mandamus Review

1.  To obtain a writ (an order from the Court) to a lower tribunal (the agency) directing the agency to set aside its decision, to reconsider its decision, or take such other action as the Court directs. (CCP §1094.5(f).)

2.  Special Proceedings

–  CEQA (Public Resources Code § 21165.7)

–  Traditional Mandamus (CCP §§ 1084-1097, 1107-1110(b))

E.  Features of Administrative Mandamus

1.  Administrative mandamus is a civil, special proceeding. (CCP § 23-63)

2.  Administrative mandate is a judicial review but it is not a reconsideration of the agency decision. There are some agency decisions that by statute or case law are judicially reviewed at the appellate level. (Public Utilities Commission, Department of Alcoholic Beverage Control, State Bar, etc.)

3.  Equity applies in administrative mandamus. Curtain v. DMV (1981) 123 Cal.App.3d 481, 484.

4.  Speedy proceeding. Mandate hearings usually occur within weeks or months of a filing. Local court rules may specifically control the filing of an administrative mandamus (departments which may hear, other rules, etc.).

5.  No damages. In very narrow circumstances, a separate, later action for damages may be instituted. O’Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722, 729.

6.  No jury. Administrative mandamus is heard by the Court. CCP §1094.5(a).

7.  Administrative exhaustion required before judicial review is available by administrative mandamus.

8.  A court considering a writ of administrative mandamus conducts a limited trial de novo, reviewing the administrative proceedings and the evidence admitted during the hearing. A court may inquire into whether the agency acted in excess of its jurisdiction, committed a serious error of law, or abused its discretion in determining of facts. CCP §1094.5(b)-(c).

9.  Understand the standard of review. “Substantial evidence” or “independent judgment”.

10.  Petitioner has the burden of proof. “Rarely if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.” Fukuda v. City of Angels (1999) 20 Cal.4th 805, 814.

11.  New evidence not admissible. (Yes, there are exceptions but they are few and far between. More on this later.)

12.  “Discovery” as that term is used in the Civil Code as to civil proceedings is not available in the usual administrative mandate proceedings. (Yes, there are exceptions. More on this later.)

13.  Presumption that the administrative decision is correct.

14.  Prevailing party obtains costs, including administrative record preparation costs, and other costs of suit.

15.  Attorney’s fees not usually available. (Yes, there are exceptions. More on this later.)

16.  Generally no joinder with other causes of action. (No addition of declaratory relief, etc.) Allowed when cases of unconstitutionality declarations or applications for traditional mandamus (especially useful when uncertain as to which type of writ should be sought).

17.  A hearing on a petition for writ of administrative mandamus proceeds like a law and motion matter but the result of the judgment. CCP §1094.5(a), (f). This hearing, therefore is the only “trial” in an administrative mandamus action. Unlike other types of trials, no witnesses testify, and with certain limited exceptions, the only evidence the Court can consider is the evidence in the administrative record.

F.  Judicial Review of What?

1.  Governmental agency decisions. Although there are a few statutory exceptions, proceedings under CCP §1094.5 are the exclusive remedy for challenging the final adjudicatory decision of a state or local government agency when the decision is the result of a required evidentiary hearing. The list of qualifying decisions is long: professional license denial, licensed disciplinary proceedings, employee discipline imposed by a state or local public employers, termination of tenured teachers, driver’s license decisions, denial of disability retirement benefits, and many zoning and land use decisions.

2.  Adjudicatory decisions of private organizations. Any private organization that by bylaws or due to internal rules must hold a hearing and reach an adjudicatory decision may be submitted to administrative writ review. Hospital privilege decisions, internal insurer decisions regarding fees that will be charged by participating practitioners, private company decisions to terminate or discipline employees under a grievance procedure that requires evidence to be taken and considered during a hearing and union decisions.

G.  How is this different from traditional Mandamus?

1.  Traditional writ of mandate under CCP §1085 is appropriate when the Petitioner has no plain, speedy, and adequate alternative remedy and the Respondent has a clear, present and usually ministerial duty to act.

2.  Traditional mandamus may also apply when an administrative agency is not required to hold an evidentiary hearing.

3.  Quasi-legislative acts may also be reviewed on traditional mandate.

H.  Objections to Evidence.

1.  Offering Evidence. A party may lose the opportunity to raise on writ of administrative mandamus by failing to raise the issue in the administrative hearing. This rule also applies to defenses that require an evidentiary showing. Jenron Corp. v. Dept. of Social Services (1997) 54 Cal.App.4th 1429, 1437 (failure to raise laches defense in administrative hearing waives the issues in subsequent administrative mandamus proceeding).

2.  A party must object to the admission of evidence at the administrative hearing, otherwise the evidentiary objection will be deemed waived. Hand v. Board of Examiners (1977) 66 Cal.App.3d 605, 613.

a.  Hearsay evidence in administrative proceedings. Important differences from civil proceedings. Hearsay is generally admissible to supplement or explain other evidence in administrative proceedings, as long as it is both relevant and is “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” Gov’t. Code § 11513(c). Specific rules applicable to a given administrative proceeding may further limit or permit the use of hearsay. Know your rules.

b.  Hearsay objections must be made at the hearing. At risk of waiving issue in later judicial review.

c.  Exceptions

(1)      Lack of subject matter jurisdiction.

(2)      Failure to state a cause of action.

(3)      Constitutional issues.

d.  These issues may be raised at any time. Don’t rely on an exception. All things being equal, it is better to object than not object. Consider use of wholesale “throughout this proceeding” objections. Often the administrative hearing officer will prefer such “global” objections rather than forcing him or her to rule on each individual objection. This time saving technique, however, can have pitfalls. Make sure that the stipulation that all objections have been made and preserved is on the record.

I.  The Record

1.  The standard applies whether the Court is considering the writ under the independent judgment test or the substantial evidence test. This is also true when the Court is deciding a purely legal issue.

2.  CCP §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when: (1) the evidence could not, with due diligence, have been procedure during the administrative proceedings; or (2) the administrative body improperly excluded the evidence. Western States Petroleum Assoc. v. Superior Court (1995) 9 Cal.4th 559, 578.

3.  Evidence outside the administrative record might also be appropriately considered on issues not related to the validity of the decision being challenged such as standing and capacity to sue; affirmative defenses such as laches, estoppel and res judicata and the accuracy of the record. Western States, supra, 9 Cal.4th at 578.

4.  Sufficient record is essential to meet Petitioner’s burden. Eureka Citizens for Responsible Government v. City of Eureka. That said, in cases where the issues is purely legal and base on undisputed facts, a full record may not be necessary. Elizabeth D. v. Zolin (1993) 21 Cal.4th 347, 353.

5.  When to make the request. The record may be requested before filing, at the time of filing, or shortly after filing a petition. The Respondent agency may begin preparing the record as soon as the petition has been filed. However, this is a statutory and regulatory driven process. Petitioner should ascertain whether a particular statutory or regulatory scheme includes any special requirements concerning when the record must be requested.

6.  Make request in writing.

7.  Laches, burden of proof, res judicata, estoppel, validity of regulations, duress and necessity. May be supported by evidence outside the record.

8.  Bias charges.

a.  Raising the issue.

b.  Constitutional due process requires a competent and impartial tribunal in administrative hearings. The issue of bias must be raised at the administrative hearing. In APA Act cases, claim of prejudice must be raised under the procedures of Government Code § 11512(c) or the issue will be waived. Less stringent standard of impartiality than allowed for a hearing for judges in a civil matter. “The fact that an administrative agency is both accuser and judge is not considered to deprive the accused of due process of law.” Hallot v. Superior Court (1992) 3 Cal.App.4th 1575.

9.  Statute of limitation issues. In cases governed under CCP §1094.6 and the Administrative Procedures Act, request for preparation of the administrative record within 10 days after the date of the administrative decision being challenged, the applicable statute of limitations will be tolled until 30 days after the record has been delivered or mailed to the Petitioner. CCP §1094.6(d).

J.  BEWARE! Know your statutes.

1.  Different statutes have different statute of limitations and time limits.

2.  Preparation of the record can take months, certain time lines apply.

 K.  Record Preparation.

1.  The Petitioner has the burden of proof and bears the burden and the cost of preparing and producing the administrative record. CCP §1094.5(a), CCP §1094.6(c).

2.  This cost may be recoverable if the Petitioner prevails.

3.  Agencies are required to prepare and produce a record.

Today in 1963 Martin Luther King, Jr. gave his “I Have a Dream Speech” – The #1 speech of the 20th Century

On this day in 1963, Martin Luther King, Jr. gave his famous I have a Dream speech. You may not know this, but the part of his speech where he launched into beginning his sentences with “I have a dream” was not planned. He had used those phrases in the past, but they were not written into this speech. He was inspired by the crowd and went with it. And boy did he go with it.

And it has been classified as the #1 speech of the 20th Century. For good reason.

His use of repetition was so effective that the speech is remembered for, and titled by, those passages and that phrase. He actually utilized a variety of fantastic rhetorical devices throughout his speech, including alliteration and other forms of repetition.

If you’d like to hear it, or read it, you can find MLK’s I Have a Dream Speech here at AmericanRhetoric.com.

If you would just like to remember that specific  passage though, I’ve copied it here (remember this came at about 2/3 of the way through his speech):

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

I always reference this speech when I teach my Presentation Skills for Attorneys seminars. Once, after one of my programs, an attendee came up to me and told me about a book his son had written discussing the speech. It is a terrific book and I recommend it – a very interesting historical look at the speech! The book is called “the Dream: Martin Luther King, Jr. and the Speech that Inspired a Nation.” You can find it on Amazon (of course) and I am sure it’s in bookstores as well.

The speech is one of my favorites of all time. Every single person in all of my presentation skills courses (thousands at this point) have heard the phrase and know what it means – we always hear it on the radio, we probably read about it back in school. But when is the last time you listened to the whole thing, or read it the whole thing, if ever?

Take the time to do it now. It’s worth it.

 

 

 

Swing Music, Dancing & Dining at the Cicada Club

Join
Gary Greene, Esq. & his Big Band of Barristers
featuring vocalists
Mary Stanford & Roxy Darr
at the world-famous Cicada Club
617 S. Olive Street, Downtown Los Angeles
on Saturday, September 29
7:00 pm Doors Open
8:30 pm Showtime

Travel back in time to the 1930s, 40s and 50s for a night of fabulous entertainment at one of the top supper clubs in Los Angeles. Gary Greene, Esq. & His Big Band of Barristers is joining forces with retro jazz vocalist Mary Stanford to create an epic show featuring the Great American Songbook with music from the Golden Era of Big Bands at the world-famous Cicada Club. Sensational singer Roxy Darr will also be performing with the band. Enjoy an elegant evening of live big band music, swing dancing and dining inside the historic 1928 Art Deco Oviatt Building in downtown Los Angeles. They’re pulling out all their favorite tunes from the birth of swing through the Rat Pack era. It will be a night to remember!

                                 
Mary Stanford                                                                                         Roxy Darr

Buy Tickets

Admission tickets are $30, but for a limited time you can pay an Early Bird price of $25. (Admission tickets are required for each guest with or without dinner purchase.)

Dinner tickets are $64 (but not required). The price includes a delicious three-course dinner.

Drafting CA’s Permanent Cannabis Laws

cannabis

It’s been almost two years since cannabis was legalized for recreational use in California – and the business, economic and legal implications are profound.

Last Friday, California regulators published the first draft of permanent adult-use and medical cannabis laws.

This kicks off the process of hearings and public comment that will conclude at the end of 2018 with a final set of regulations governing the emerging industry.

Proposed laws fill the 315-page document, sent out by the Bureau of Cannabis Control, the Department of Food and Agriculture, and the Department of Public Health.

A few permanent regulations proposed in the document include:

  • Allowing licensed marijuana deliveries in any city or county in CA
  • Expanded restrictions on marijuana advertising which may appeal to children
  • Requiring marijuana event hosts to be more explicit about where:
    • licensed retailers will be set up
    • attendees can smoke or consume cannabis
    • sales will occur

Lori Ajax, chief of the Bureau of Cannabis Control, said, “The regulations we now propose include changes that make it easier for businesses to operate and strengthen public health and safety policies.” State agencies will hold ten public meetings around California through August to collect public comments on the proposed permanent laws. Comments may also be submitted by letter or email.

At our upcoming Recreational and Medical Marijuana Law and Business in California conference on November 1st-2nd, we’ll go in-depth on a variety of issues in this burgeoning industry for attorneys, investors and business operators. For those who serve clients in the cannabis industry and those attorneys who want to move into this space, our program will help you navigate the rules, regulations, and legal ramifications of legalized marijuana in California (and federal issues affecting the state’s cannabis industry as well). For investors and business people in the market (or thinking about entering the market) what do you need to know? What are the difficulties businesses face – from retail to growing and distribution? By the end of our conference you will be well-versed in most of the critical legal, business, and investment-related aspects of this rapidly expanding industry.

Legalizing Recreational Marijuana in New York

marijuana

Last Friday, the New York State Department of Health recommended the state legalize the use of recreational marijuana.

This would mean a new area of law for attorneys in New York who have not yet practiced in this emerging industry.

Gov. Andrew Cuomo commissioned the report this month that found, “the positive effects of a regulated marijuana market in NYS outweigh the potential negative impacts.” Among the positive effects? Lowered marijuana-related arrests in low-income neighborhoods. In 2017, 86% of those arrested for marijuana possession in New York were people of color, according to the state Division of Criminal Justice Services.

New York state expects the sales tax revenue to range between $248.1 million to $677.7 million each year, creating an opportunity for residents to start their own marijuana businesses. However, it’s not as easy as one might think, at least from a legal standpoint, said Daniel Shortt, a cannabis attorney with Harris Bricken. Attorneys will need to seek some sort of ethics guidance on working with marijuana clients.

Harris Bricken has plenty of experience dealing with the legal marijuana industry. Partner at the Seattle firm is Hilary Bricken, who has earned a reputation as a fearless advocate for local businesses. Hilary will be speaking at our Recreational and Medical Marijuana Law and Business in California conference on November 1 and 2, 2018. Over the course of two days we’ll go in-depth into a variety of issues in this burgeoning industry for attorneys, investors and business operators.

For those who serve clients in the cannabis industry and those attorneys who want to move into this space, our program will help you navigate the rules, regulations, and legal ramifications of legalized marijuana in California (and federal issues affecting the state’s cannabis industry as well). For investors and business people in the market – or thinking about entering the market – what do you need to know? What are the difficulties businesses face – from retail to growing and distribution?

By the end of our conference you will be well-versed in most of the critical legal, business, and investment-related aspects of this rapidly expanding industry.

LA Animal Services Urges Pet Owners Not to Leave Furry Friends in Hot Cars

cars

A message from the Los Angeles Department of Animal Services:

When the temperature increases outside, the danger of leaving your pet in a vehicle increases. LA Animal Services urges people not to leave their beloved pet behind in the car, informs residents about the law and gives steps that can be taken if you find a pet in danger in a parked vehicle.

What you expect to be a quick stop at the store could mean your pets are suffering or being injured by excessive heat, even if a window is cracked open. An animal in a hot car could suffer brain damage or death.

“Many people just don’t know about this risk,” said Brenda Barnette, LA Animal Services (LAAS) General Manager, “We’re trying to get the word out and prevent needless tragedy so pet guardians do not thoughtlessly or unknowingly leave their companion animal behind in a hot parked car.”

If you are not going to be able to take your furry friend in with you every time you get out of the car, make the safe choice and leave him at home. A quick stop may feel like no time at all to you, but it’s too long to leave your pet in a vehicle unattended on a warm summer day and endangers the life of your pet.

Not only is the well-being and safety of your pet at risk, leaving your four-legged family member in the car can also be a legal issue for you. In fact, someone accused of leaving an animal in a hot car could face heavy fines, be charged for animal cruelty, and face jail time.

In December 2017, the West Valley Animal Services Center received a report from a citizen that there was a dog inside a vehicle in heat distress. An LAAS Animal Control Officer responded and found the temperatures inside the vehicle ranged from 119-123 degrees. The Officer rescued the dog, named Cali, from the vehicle and transported her to the West Valley center. Once there, an LAAS veterinarian diagnosed the dog as hyperthermic and was able to successfully cool her down. The dog owner has been charged with animal cruelty and their case is currently pending prosecution.

What can you do if you see a pet suffering in a parked car? Good Samaritan bystanders are legally allowed to break into cars if they feel there is imminent danger to the animal inside. Anyone in that situation should first call 911 or any of the six LA City animal shelters at 888-452-7381 and ask to speak to the Officer in Charge.

If the animal is in immediate danger, the car is locked, and law enforcement is not arriving quickly enough to save the animal’s life, the law provides immunity from civil and criminal liability to a person causing vehicle damage for the purpose of rescuing the animal.

If you see a pet in a hot car:

  1. Immediately take down the vehicle’s model, make, color, and license plate number. These can be used to report the owner for neglect or irresponsible behavior, and also to identify who the owner is.
  2. Go into the local businesses or buildings nearby and notify a manager or security guard. Insist that they make an announcement over the intercom with the license plate number to inform the owner of the dire situation.
  3. If you can’t find the owner, call the authorities. Call the police or the closest animal shelter in the area to come and assess the situation.
  4. Do not leave the scene. Signs of heatstroke include restlessness, excessive thirst, heavy panting, dark tongue, rapid heartbeat, fever, vomiting, and lack of coordination. Keep a close eye on the pet for these symptoms, as it could mean that the situation needs to be acted upon very quickly.
  5. If the authorities take too long, take action. If you very honestly believe that the pet is in bad condition and showing symptoms of heatstroke, assess the situation and remove the pet from the heat immediately and wait for the authorities to arrive. Check to ensure the car is locked and cannot be opened, break a window if needed but do not use more force than necessary during the rescue.
  6. Take proper steps to care for the animal. When the pet is removed from the hot car, the situation isn’t necessarily over yet. Get the animal into air conditioning as soon as possible and give him cool water to drink. Continue to stay with the pet until law enforcement arrives.

Anna-Rose Mathieson Featured on the SCOTUSBlog!

Anna-Rose

In a recent post on the SCOTUSBlog, one of the terrific attorneys who has spoken at our seminars, Anna-Rose Mathieson, was highlighted as being a leading U.S. Supreme Court amicus brief filer during the 2017-2018 term! Ms. Mathieson had previously spoken for us at our 2017 and 2018 Advanced Appellate conferences in San Francisco, and our attendees loved her presentations and advice both times. Congratulations Anna-Rose!

You can find Anna-Rose’s biography here.

Foster a Pet for the 4th of July and Save a Life!

Pet

An important 4th of July message from LA Animal Services:

Every year around the 4th of July, LA Animal Services Centers fill beyond capacity with terrified lost pets. This means that available shelter space can be the difference between life and death for our shelter guests who have been with us past the required hold period. YOU can make that life-saving difference by fostering for four days or more or adopting. 

In Los Angeles, daily dog and cat admissions at the six LA Animal Services Centers increased by 5.1% from July 2 to July 6 in comparison to the average daily intake in 2017. The loud sounds of July 4th fireworks frighten dogs and cats. If they get out of the house or yard, they run in fear. Then these frightened dogs and cats can’t find their way home and end up at our city shelters. These pets are counting on us to help reunite them with their families. 

We need YOUR help right now to create life-saving space in our crowded city shelters.

“While many people are out celebrating, the shelters will be flooded with scared pets,” said Brenda Barnette, LA Animal Services General Manager. “Our hope is that animal lovers in Los Angeles will open their home and hearts to help orphaned pets. If you aren’t ready to adopt, fostering is a great way to see what it’s like to have a four-legged addition to your family.”

We have hundreds of wonderful dogs and cats of all ages, breeds and sizes waiting to be your temporary companion or best friend forever. Adopt or foster a shelter pet today. By giving an abandoned pet a new home or letting them stay with you for a short time, you are saving two lives, the one you are caring for and the one who now has room at the shelter. 

Every pet is spayed or neutered, vaccinated, microchipped and ready to be placed in a good home. Additionally, to help maximize space during this critical time, the Pet Care Foundation is helping us reduce $50 on our adoption fees this weekend, June 23rd and 24th, during their biannual CHI-PITTY-KITTY adoption event. Cat and kitten adoption fees are $26.00 and pit bull terriers and chihuahua adoption fees are $72.00 (includes $20 city license). Click here to view our adoptable pets.

To volunteer to foster, print your application at LAASFostering or go to your nearest animal services center and ask for a Foster Volunteer Application. Please drop off your completed form to your nearest center as soon as possible so we know we have you as a resource during our busiest time. You can pick up a pet to foster right away or we can reach out when we need the most help.

The shelters are open Tuesday through Saturday from 8 a.m. to 5 p.m. and Sunday 11 a.m. to 5 p.m. We are closed on Mondays and the 4th of July. To find the shelter nearest you, visit LAASlocator or call (888) 452-7381.

Together, we can save more lives in the City of Angels! Our heartfelt thanks will be nothing compared to the lifetime of memories and unconditional love you will get from your furry friend.

Donate to help animals in the city of Los Angeles!