One of the great mysteries of administrative law is how to challenge a decision or action by an administrative agency once the agency has completed the administrative process or refused to act. Whether the agency has completed an administrative hearing or simply refuses to follow one of its legal obligations, the tool of the administrative law trade to challenge these agencies is called a petition for a writ of mandate.
There are two main types of writ petitions.
Petition for Writ of Administrative Mandate
The first is called a petition for writ of administrative mandamus or mandate. This is also known among lawyers as a “1094.5 writ” named for the code section that authorizes it. Historically a petition for writ of administrative mandate is a very old legal tool and has extremely complicated requirements set forth in Code of Civil Procedure section 1094.5. In addition, there is much case law (legal precedent) surrounding this type of writ petition.
Petitions for writ of administrative mandate are used to challenge a final quasi-judicial decision of an administrative agency. This means if a government agency provides you a hearing with a chance to present evidence and cross-examine witnesses, you may have the right to file a petition for writ of administrative mandate. Such a writ petition is filed in the superior court. The court will review the record of the administrative tribunal for certain errors specified in the law.
Generally speaking, the superior court cannot go outside of the administrative record of the agency and must determine if the agency made proper findings, whether the writ petitioner received a “fair hearing,” and whether or not there were errors of law. There are a number of specific grounds of “errors of law” set forth in section 1094.5. In addition, most of the time the petitioning party must provide a copy of the administrative record including the exhibits and the transcript of the proceedings to the superior court judge for the court’s review.
This type of writ petition applies to state agencies such as the Medical Board of California (“MBC”) and other licensing Boards, the State Personnel Board (“SPB”), Department of Conservation, and Department of Real Estate (“DRE”) just to name a few. In addition, a petition for writ of administrative mandate can be used to challenge local government decisions such as appeals from a Civil Service Commission, zoning decisions, and other local government action.
Petition for Writ of Traditional Mandate
The other type of writ petition used in dealing with government agencies is a petition for traditional writ of mandamus or mandate. This type of writ petition asks a reviewing court to compel an agency to follow its legal obligation under the law. There is no requirement that the agency conducted a hearing and the court does not review the record of the hearing. Instead, the reviewing court reviews a statute, regulation, or some other legal requirement that the petitioning party contends the agency refuses to follow. For example, in a case where a petitioner is entitled to a hearing and to present evidence regarding a certain issue, a petition for writ of traditional mandate pursuant to Code of Civil Procedure section 1085 is appropriate to ask the court to compel the agency to provide a hearing. Accordingly, lawyers call this type of petition a “1085 writ.”
Unlike its administrative mandate counterpart, a Section 1085 writ petition is not limited to a review of the administrative record and involves introducing other kinds of evidence. In fact, a traditional mandate case can more likely involve discovery, depositions, declarations of witnesses, and other types of evidence typically not permitted in an administrative mandate case.
Another related component of these administrative tools involves stopping the effective date or implementation of the administrative agency’s action pending the hearing on a writ petition. The best example of this involves a licensing case where, for example, a professional engineer has her license revoked by the Board for Professional Engineers, Land Surveyors, and Geologists. In such a case, the goal would be to file a petition for writ of administrative mandate as soon as possible before the effective date of the decision and ask the Superior Court to “stay” the effective date of the decision pending the ability to have the writ petition heard. Because writ petitions involve detailed legal briefing, they do not happen quickly. And in some courts such as Sacramento Superior Court, the courts maintain special rules for handling writ petitions.
While requests for stay are very difficult to get and very similar to requesting temporary injunctions, the failure to obtain a stay can often result in the demise of the petitioner’s case. In other word, in certain cases if the agency’s decision goes into effect, the petitioner simply will not be able to overcome the agency’s decision.
A good example of this involves a licensing case where a veterinarian has his license revoked by the Veterinary Medical Board (“VMB”). By the time the writ petition can be heard, the veterinarian’s practice may be closed and unable to recover. Thus, a request for stay, stopping the Board’s revocation from taking effect, is crucial.
Due to the very specific nature of writ petitions and requests for stay, in addition to the complicated legal framework in which the courts deal with these administrative law tools, it is strongly recommended to have legal counsel experienced in writ petitions assist you in these matters.