Writ of Administrative Mandate
Crash course of this peculiar form of writ that serves as the de facto appeal for license discipline cases.
Legal Standard for Petitions for Writ of Administrative Mandate
One files a petition for writ of administrative mandate to challenge any decision by an agency in the Executive Branch in which (1) an adjudicative proceeding has taken place and (2) the party presiding over the adjudicative proceeding has abused its discretion. The petition for a writ of administrative mandate asks a Court to review the decision or action and enter an order either setting aside the decision or remanding it for further proceedings.
Arguments in a petition for a writ of administrative mandate offer limited remedies. Furthermore, a successful argument may not show the requisite amount of abuse of discretion warranting a set aside or rehearing. That would ultimately result in the petition being dismissed. Even if the Superior Court is convinced you were wronged, they are not likely to just dismiss the Accusation. Rather, the writ is to correct the “wrong” committed by the ALJ and/or Board; and the most likely positive outcome of any license discipline petition for a writ of administrative mandate would be to send the case back to the Board for a different form of discipline.
A petition for writ of administrative mandate is filed under Code of Civil Procedure, section 1094.5. This code section specifies on what grounds an appeal may be taken. Section 1094.5 states in relevant part (italicized emphasis is mine):
(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a/air trial; and whether there was any prejudicial abuse of discretion.
(Code Civ. Proc., § 1094.5(b).)
By statute, arguments in the proceeding are only limited to:
· Whether the ALJ or Board proceeded without, or in excess of, jurisdiction;
· Whether there was a fair trial;
· Whether there was any prejudicial abuse of discretion.
The standard used to determine any prejudicial abuse of discretion is not fixed. Rather, the court has two standards to choose from: substantial evidence test or the independent judgment test.
Substantial Evidence Test
The substantial evidence test gives significant deference to the underlying decision maker, whereas the independent judgment test lets the court decide whether it wishes to supplant the decision maker and insert their own decision on issues of critical importance to the decision in the case. The explicit difference is found within the same statute:
(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (Code Civ. Proc., § 1094.5(c).)
In professional license discipline cases, the court has been determined by law to be authorized to exercise its independent judgment of the decision to revoke or suspend a license. Specifically, cases in which a professional licensing agency brings an accusation seeking to revoke or suspend a professional license are the deprivation of a fundamental vested right, warranting use of the independent judgment test. (See, e.g., Griffiths v. Superior Court (Med. Bd. of Cal.) (2002) 96 Cal.App.4th 757; Clare v. State Bd. Of Accountancy (1992) 10 Cal.App.4th 294, 300; Board of Dental Exam’rs v. Superior Court(I976) 55 Cal.App.3d 811.)
When the independent judgment test applies, experience has shown that judges plunge more deeply into the record to make their own evaluation of the evidence and to look for arbitrary agency action. For example, they may review the credibility of testimony from witnesses or the weight given to particular evidence of misconduct, aggravation, rehabilitation, mitigation, or character. This distinction is important. And in a close case where a single error in the record could be grounds to overturn the decision, it would be an argument in favor of proceeding with a judicial review of the decision to revoke a professional license.