(This article first appeared in the January/February 2008 issue of the Sacramento Lawyer, the bi-monthly publication of the Sacramento County Bar Association.  The article is the copyrighted property of the Sacramento County Bar Association.)
This article discusses two of the main tools government and administrative law practitioners use to challenge a government agency action or decision – writs of mandate.  These writs come primarily in two varieties, the “traditional writ of mandate” and the “writ of administrative mandate.”  While both are used to challenge government agencies, they each have different purposes.
Writ of Administrative Mandate
Code of Civil Procedure Section 1094.5 governs writs of administrative mandate, which are used to review the quasi-judicial hearing of an administrative agency.  There are four main requirements for challenging an agency’s administrative decision by a writ of administrative mandate:

    1. The agency is required by law to hold a hearing;
    2. The agency takes evidence at such a hearing;
    3. At such a hearing, the agency has discretion to determine the relevant facts and make factual findings; and
    4. The agency rendered a final decision (exhaustion of administrative remedies).[1]

 
Nature of Court’s Review
In an administrative mandate case, the trial court’s review is typically limited to reviewing the administrative record of the agency’s decision.  Only in rare circumstances can the record of the administrative proceedings be augmented in the trial court.[2]  As an equitable remedy, an administrative mandate case typically seeks
to overturn or modify the agency’s final decision, and does not seek monetary damages.  In a number of cases, the court may also remand the matter to the administrative agency for further proceedings.
The most common grounds for a court overturning or remanding an agency decision by granting the petition for writ of administrative mandate include:

    1. The agency’s findings are not supported by the evidence in the record;
    2. The agency’s legal conclusions are not supported by the findings;
    3. The licensee or party against whom the agency is taking action did not receive a fair hearing;
    4. The agency made an error in law; and
    5. The penalty assessed the licensee or respondent is excessive as a matter of law and is unsupported by the evidence.

 
Traditional Writ of Mandate
A traditional writ of mandate is available to challenge an agency’s failure to follow its legal obligation or ministerial duty.  Unlike administrative mandate, traditional mandate cannot be used to review decisions that result from an adjudicatory process or an administrative hearing.[3]  Examples where traditional mandate is appropriate include cases where an agency refuses to grant a right such as a hearing, permit, or welfare or other benefit to which someone is entitled under the law, or when the agency fails to follow a clearly articulated legal obligation under the law.
Nature of Court’s Review
In a traditional mandate case, the court’s review is not limited to any administrative record.  Rather, the court examines whether the agency has an obligation or duty under the law and reviews evidence of whether the agency failed to act appropriately.  The relief sought by traditional mandate is usually an order directing the agency to follow the law or comply with its legal obligation or duty.
Which Type of Writ to File?
The answer to this question is often not clear.  Sometimes an agency will conduct a “review” of information submitted to it and render what appears like a decision, but the process fails to meet the formal hearing requirements of Section 1094.5 to file a writ of administrative mandate.  Two such examples of this are the Department of Health Care Services Medi-Cal appeal process[4] and the Secretary of State’s licensing of immigration consultants.[5] In such a case, it is advisable to file both a traditional writ of mandate and a writ of administrative mandate.
Useful Resources
There are several practice guides, which are extremely helpful in dealing with writs of mandate and administrative law issues in general.  These include the following:

    • California Administrative Mandamus, 3d Edition, Continuing Education of the Bar.
    • California Administrative Hearing Practice, 2d Edition, Continuing Education of the Bar.
    • California Forms of Pleading and Practice, Matthew Bender, “Public Agency Adjudication,” Volume 41, Chapters 473 — 479.
    • California Administrative Law, Michael Asimov and Marsha Cohen, 2002, West Group, St. Paul, MN

 
Footnotes

  1. See Code of Civil Procedure section 1094.5(a).
  2. Code of Civil Procedure section 1094.5(e) allows “new evidence” to be offered to the reviewing court when “the relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before [the agency].”
  3. Code of Civil Procedure section 1085; See also (California Administrative Mandamus, 3d Ed., Cont. Ed. Bar, 2004 Update, Section 5.23, p. 131).
  4. Welfare and Institutions Code section 14043.65.
  5. Business and Professions Code sections 22441.1, et seq.