LIABILITY AND LITIGATION: MANDATE/JUDICIAL REVIEW presented by PHILIP D. KOHN e-mail: pkohn@rutan.com RUTAN & TUCKER, LLP www.rutan.com I. TYPES OF WRITS OF MANDATE A. Ordinary (or Traditional) Mandamus B. Administrative Mandamus II. ORDINARY MANDAMUS A. Authorized and governed by Code of Civil Procedure section 1085 B. Usually involves legislative or quasi-legislative acts C. May also involve ministerial acts III. ADMINISTRATIVE MANDAMUS A. Authorized and governed by Code of Civil Procedure section 1094.5 B. Usually involves adjudicatory and quasi-judicial acts IV. ACTIONS TYPICALLY SUBJECT TO ORDINARY MANDAMUS A. General Plan B. Specific Plan C. Local Coastal Program D. Zoning E. Development Agreement F. Final subdivision map G. Land acquisition H. Reorganization
I. Award of contract or franchise J. Public works project K. Adoption of standards and regulations L. Building permit M. Grading permit V. ACTIONS TYPICALLY SUBJECT TO ADMINISTRATIVE MANDAMUS A. Tentative tract map or parcel map B. Conditional use permit C. Variance D. Coastal development permit E. Planned unit development F. Design review G. California Environmental Quality Act (though not all) H. Williamson Act contract I. Personnel (discipline, pension/retirement) J. Professional or vocational licenses VI. MIXED OR HYBRID ACTIONS A. Just because hearing, evidence and findings are present doesn't necessarily mean action is adjudicatory B. Decision may entail elements of both legislative and quasi-judicial actions C. "Dominant concern" and nature of action determine proper type of writ VII. SCOPE OF JUDICIAL REVIEW: ORDINARY MANDAMUS A. Question whether agency's action or decision is arbitrary, capricious, entirely lacking in evidentiary support, or result of failure to follow required procedures -2-
VIII. SCOPE OF JUDICIAL REVIEW: ADMINISTRATIVE MANDAMUS A. Question whether agency proceed without or in excess of jurisdiction, conduct fair hearing, or commit prejudicial abuse of discretion B. Prejudicial abuse of discretion if not proceed in legally required manner, decision not supported by findings, or decision or findings not supported by evidence C. Normally, apply substantial evidence: inquire whether findings and decision supported by substantial evidence in light of whole record D. Apply independent judgment test where fundamental vested right involved: court determines whether findings and decision supported by weight of the evidence IX. GENERAL FUNCTION OF WRIT A. To control abuse of discretion, not to compel exercise of discretion in a particular manner however, court may do so if determine that discretion can be exercised in only one way on basis of evidence B. To compel the performance of a mandatory duty where ministerial act at issue C. Presumption of validity of decision D. Burden of proof on challenger E. Court not substitute judgment or discretion reposed in agency F. Court not consider motives of decision-makers G. Review generally limited to evidence in record of agency's action X. YOU'VE BEEN SERVED. NOW WHAT DO YOU DO? A. Read the Petition B. Alert and inform City Council and Staff C. Identify, locate, retrieve and assemble relevant documents D. Check to see if defense or indemnity responsibility of third party E. Possible coordination with real party in interest F. Evaluate possible defenses/strategies G. Formulate and implement response -3-
XI. POSSIBLE WRIT DEFENSES A. Lack of standing, beneficial interest or capacity to sue B. Statute of limitations (filing and/or service) C. Failure to exhaust administrative remedies (factual and legal issues) D. Failure to exhaust judicial remedies (e.g., wrong type of writ) E. Failure to name indispensable party (respondent or real party in interest) F. Failure to verify petition G. Laches H. Unclean hands I. Ripeness/finality J. Mootness K. Res judicata or collateral estoppel XII. POSSIBLE INITIAL RESPONSES TO PETITION A. Timing considerations B. Where petitioner seeks alternative writ C. Demurrer (see Form 1) D. Answer (see Form 2) E. Motion to strike F. Motion for judgment on the pleadings G. Consider peremptory challenge to assigned judge XIII. POSSIBLE LATER RESPONSES TO PETITION A. Motion for summary judgment or summary adjudication of issues (see Form 3) B. Motion to deny issuance of writ (preemptive strike) (see Form 4) C. Opposition to petitioner's noticed motion for issuance of writ (see Form 5) -4-
XIV. PRE-HEARING CONSIDERATIONS A. Voluntary correction of challenged action B. Formal or informal settlement opportunities C. Whether discovery available and, if so, whether to utilize D. Preparation of record E. Bifurcation of case if mixed causes of action (see Form 6) F. Hearing date and briefing schedule (see Form 7) G. Stipulation as to Issues, Exhibits, etc. (see Form 8) XV. ADMINISTRATIVE RECORD CONSIDERATIONS A. Petitioner may request preparation or may prepare record B. In any event, make sure complete C. Lodge with court (see Forms 9 and 10) D. Resist efforts of petitioner to augment if agency prepare (see Form 11) E. Possible request for judicial notice (see Form 12) XVI. ADMINISTRATIVE RECORD CONTENTS A. Transcript of proceedings B. Staff reports C. Materials presented or available to decision-makers, whether by staff, applicant or members of public (including studies, reports, plans, diagrams, correspondence, etc.) D. Notices of meetings/hearings E. Minutes of meetings/hearings F. Ordinance, resolution or other document memorializing decision G. Municipal Code excerpts, if relevant -5-
XVII. HEARING PREPARATIONS A. Master the record B. Assess evidentiary claims (e.g., evidence improperly excluded or unavailable) C. Opposition papers (unless moving for denial of writ) D. Proposed order/judgment E. Brilliant oral argument XVIII. AGENCY'S BRIEF A. Include statement of facts, statement of the law, citations to the record, and argument B. Pay attention to standard of review, burden of proof, and defenses C. State and local court rules (e.g., page limits) XIX. POST-HEARING MATTERS A. Proposed statement of decision, order and/or judgment (see Form 13) B. Prepare and serve notice of entry (see Form 14) C. Motions for reconsideration, new trial, vacation of judgment, etc. D. Memorandum of costs E. Attorney's fees issues (see Form 15) F. Appeal G. Return to writ (see Form 16) XX. FINAL OBSERVATIONS A. Practice preventative law in anticipation of litigation B. Comply with requirements for notice, opportunity to be heard, burden of proof and decision C. Ensure adequate record and sufficiency of evidence and findings -6-
INDEX TO ATTACHED SAMPLE FORMS Tab Description 1 Demurrer to Petition for Writ 2 Answer to Petition for Writ 3 Notice of Motion for Summary Judgment/Summary Adjudication, Points and Authorities, and Separate Statement of Undisputed Material Facts 4 Motion to Deny Writ of Mandate, Point and Authorities 5 Memorandum of Point and Authorities in Opposition to Writ of Mandate 6 Stipulation/Order for Bifurcation of Causes of Action 7 Stipulation/Order for Hearing Date and Briefing Schedule 8 Stipulation/Order for Joint Issues, Exhibits, Bifurcation 9 Lodging of Administrative Record (Index) 10 Certification of Administrative Record 11 Opposition to Motion to Augment Administrative Record 12 Request for Taking Judicial Notice 13 Judgment Denying Petition for Writ of Mandate 14 Notice of Entry of Judgment 15 Opposition to Motion for Attorney's Fees 16 Return to Writ of Mandate -7-