ADMINISTRATIVE VERSUS TRADITIONAL MANDAMUS

 

I. WHICH IS WHICH?

 

A. The Statutory Distinction Between The Two.

 

1. Administrative mandamus is governed by CCP Section 1094.5.

"Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the [agency]." CCP Section 1094.5(a).

2. Traditional mandamus is governed by CCP Section 1085.

"It may be issued by any court ... to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ..."

3. CEQA contains provisions intended to parallel the two.

a] Pub. Res. Code Section 21168 establishes that any action challenging a decision made as a result of the type of proceeding described in CCP Section 1094.5 "shall be in accordance with the provisions of Section 1094.5." The language delineating the type of hearing is identical to the language in Section 1094.5.

b] Pub. Res. Code Section 21168.5 governs "any action or proceeding, other than an action or proceeding under Section 21168 ..." Although this section does not specifically state that it corresponds to CCP Section 1085, the cases generally hold that it does. Laurel Heights Improvement Ass'n v. Regents of the University of California, 47 Cal.3d 376 (1989).

B. The Muddled Distinctions In The Case Law.

There are two separate lines of cases on whether a given case is properly brought under administrative or traditional mandamus: cases that turn on whether the underlying action was quasi-legislative or quasi-adjudicatory, and cases that turn on the nature of the proceedings. A trend seems to be emerging, however, that the critical question is the nature of the underlying action. The relevant cases are catalogued below.

1.Cases which turn on the distinction of whether the underlying action is quasi-legislative or quasi-judicial.

Laurel Heights Improvement Ass'n. v. Regents of the University of California, 47 Cal.3d 376 (1988). The court considered whether a challenge to an EIR on the relocation of portions of the School of Pharmacy was subject to traditional or administrative mandamus. Id. at 392, n.5. The Court stated that the action "appears to be one of traditional mandamus because the agency did not conduct a hearing at which evidence was taken in a judicial (adjudicative) sense, but we need not decide this issue." Id. The Court did not discuss, however, whether the actual decision made in the case was quasi-legislative or quasi-adjudicative.

Sierra Club v. Gilroy, 222 Cal.App.3d 30 (1990). The court stated that in a CEQA action, "the appropriate standard of review is determined by the nature of the proceeding below." Id. at 39. It cited Laurel Heights for that proposition, and divided such proceedings into two categories: quasi-adjudicative, to which 21168.5 (Section 1094.5) applies, and "all other actions taken pursuant to CEQA," which "generally encompasses 'quasi-legislative' actions." The court then defined those terms. "Legislative actions are political in nature, 'declar[ing] a public purpose and mak[ing] provisions for the ways and means of its accomplishment.' [cite] In contrast, adjudicative actions apply law that already exists to determine 'specific rights based upon specific facts ascertained from evidence adduced at a hearing.'[cite]" Id. The court then stated that since the "amendment of a general plan has been held to be a quasi-legislative action," the case was governed by section 22168.5. The court did not discuss, in this context, the particular procedures that had been followed in that particular case.

City of Carmel-By-The-Sea v. Board of Supervisors, 183 Cal.App.3d 229 (1986). The court held that a challenge to a rezoning based on alleged violation of CEQA was properly brought under Section 1094.5, even though 'rezoning of property, even a single parcel is generally considered to be a quasi-legislative act ... subject to review under ordinary mandamus." Id. at 238. The court stated that the action in the case "exhibited characteristics typical of a quasi-judicial act since it involved a determination of specific rights in regard to a particular factual situation rather than the formulation of broad policy applicable to future situations." Id. at 239.

Langsom v. City of Sausalito, 190 Cal.App.3d 871 (1987). The court held that a suit against the city for a failure to issue a building permit was properly reviewable under Section 1085. The court stated that "the mere fact that an agency proceeding may contain certain characteristics of the judicial process does not convert the proceeding into a quasi-judicial function." Id. at 879. The court then held that the hearing in this case "was a quasi-legislative function for, in essence, it sought to effectively amend an existing law through the guise of an adjudicatory process." Id. at 882.

Twain Harte Homeowners Ass'n, Inc. v. County of Tuolumne, 138 Cal.App.3d 664 (1982) (Since adoption of a general plan is a legislative act, "under CEQA, judicial review of a general plan adopted by a board of supervisors is governed by Public Resources Code Section 21168.5 [CCP Section 1085]").

Las Virgenes Homeowners Federation v. County of Los Angeles, 177 Cal.App. 300 (1986) ("Judicial review of quasi-legislative actions, such as enactment of zoning ordinances and adoption or amendment of general plans, is normally obtained by petition for writ of ordinary mandamus pursuant to CCP 1085.").

Balch Enterprises v. New Haven School District, 219 Cal.App.3d 783

(1990) (Resolution imposing school impact fees was a legislative action and thus reviewable under Section 1085).

2.Cases which turn on the nature of the proceedings.

Dehne v. County of Santa Clara, 115 Cal.App.3d 827 (1981). The court held that a county's determination that a permit for replacement facilities at a cement plant was categorically exempt from CEQA was reviewable under 21168.5 (CCP Section 1085) because the county code had not required that a hearing be held. The court stated that the "critical issue to be resolved is whether the Board was required by law to hold a hearing..." Id. at 836.

Citizens for the Sensible Development of Bishop Area v. County of Inyo, 172 Cal.App.3d 151 (1985). The court held that Pub. Res. Code 21168 (Section 1094.5) governs whenever the local agency procedures for EIR review require a hearing since CEQA itself requires the taking of evidence. Thus, in that case, Section 1094.5 applied to a review of a general plan amendment, rezoning, and development plan approval.

Lightwieght Processing Co. v. County of Ventura, 133 Cal.App.3d 1042 (1982). The court held that a challenge to the issuance of a conditional use permit for allegedly inadequate CEQA analysis was not reviewable under Section 1094.5 because the local ordinance had not required that a hearing be held which required the taking of evidence. The court stated that it must "initially determine whether such a public hearing was actually required by law...If it was, it triggers the necessity of a review solely be administrative mandamus." Id. at 1047. The County did have an ordinance in place that required a hearing, but it only "allow[ed] the taking of evidence, nothing ...indicates that 'evidence is required to be taken.'" Id. at 1049 (emphasis in original).

Schaeffer Land Trust v. San Jose City Council, 215 Cal.App.3d 612 (1989). The court held that a challenge to an city's decision to amend its general plan without preparing an environmental impact report was properly reviewable under Pub. Res. Code 21168 (CCP Section 1094.5) since "[b]efore adopting or amending a general plan, a legislative body is required to hold at least one public hearing." Id. at 621. That portion of the opinion, however, was "corrected" in Sierra Club v. Gilroy, supra, at 39 n.2. The Sierra Club court stated that the portion of the Schaeffer Land Trust opinion dealing with mandamus was incorrect since it was "in conflict with the Supreme Court Opinion in Laurel Heights..." Id.

3.One recent case is very hard to categorize.

In Eureka Teachers Ass'n v. Board of Education, 199 Cal.App.3d 353 (1988), the court held that a challenge to the Board's changing of an individual student's grade was reviewable under Section 1094.5, despite the fact that under the law "no hearing nor taking of evidence is specifically required." Id. at 361. The court held that for Section 1094.5 to apply, "It is not necessary that a specific provision for a hearing and taking of evidence be stated..." Id. at 362 (emphasis in original). The court pointed out that the applicable law in that case, the education code, did have provisions governing the procedures for such a grade change, and that essentially the hearing requirement was implied, and in the particular case a hearing had in fact been conducted. The court then stated that "[t]he purpose of [section 1094.5] was to clarify the situation with respect to the procedures for judicial review of adjudicatory decisions by administrative agencies." The court implied, without ever exactly saying, that the case was indeed quasi-adjudicatory. Essentially, the court simply equated what is quasi-adjudicatory with the prerequisites of Section 1094.5 review. Thus, when "agencies have been vested with quasi-adjudicatory authority to hold hearings, take evidence, and render a decision based upon findings of fact," Section 1094.5 review is proper. Id. at 366.

4.Cases which simply assume that Section 1094.5 governs.

Rural Landowners Ass'n v. City Council, 143 Cal.App.3d 1031 (1983) (applied Section 1094.5 to annexation, general plan amendment, rezoning and development plan approval).

Christward Ministry v. Superior Court, 184 Cal.App.3d 180 (1986) (applied Section 1094.5 to general plan amendment).

Browning-Ferris Ind. v. City Council, 181 Cal.App.3d 852 (1986) (applied Section 1094.5 to rezoning and development plan approval).

II. ADMINISTRATIVE VERSUS TRADITIONAL MANDAMUS DOES IT MAKE A DIFFERENCE?

A. Is Evidence Outside The Record Treated Differently?

1. Extra-record evidence may be received in Section 1085 actions.

See No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68, 79 n. 6 (1974); Sierra Club v. Gilroy City Council, 222 Cal.App.3d 30, 40 (1990).

2. In Section 1094.5 actions, receipt is more limited.

Evidence outside the administrative record will be received only "where the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing..." CCP Section 1094.5(e).

B. What Can The Court Can Do With Evidence Outside The Record?

1. Under Section 1094.5, the court will normally remand the case.

It will be remanded to be considered in light of such evidence. However, in circumstances of de novo review, the court "may admit such evidence at the hearing on the writ without remanding the case." CCP Section 1094.5(e).

2. The issue is not clear under Section 1085.

The Court in No Oil, Inc. v. City of Los Angeles, supra, stated that in a case under Section 1085, the court may receive additional evidence. "Hence the issue before the superior court in the present case was whether substantial evidence, on the whole record including the evidence presented to the court, supported the determination that no EIR was required. The superior court's finding -- that the council's resolution was supported by substantial evidence 'in the administrative record'-- is not responsive to that issue." Id. at 79 n.6.

In Sierra Club v. Gilroy, 222 Cal.App.3d 30 (1990), the court held that the case before it, challenging a general plan amendment, was a Section 1085 case, and thus a report that was completed after the close of the administrative review and proffered to the trial court by the plaintiffs should have been admitted into evidence. The court stated that in such situations, "the normal course of action would be to remand the matter to the trial court to reconsider in light of the new evidence." Id. at 42. But since, after examining the proffered evidence, the court found that it would not have made any difference, "remanding to the trial court would serve no useful purpose." The court did not say what the trial court should do if it found that such evidence did make a difference. In other words, should the trial court remand to the agency to reconsider in light of the new evidence, or should it independently decide if, considering the new evidence, the agency's decision should be rescinded?

There is an obvious conundrum posed by this case that held that evidence outside the record could be received but then stated that the ultimate question in the case remained whether there was substantial evidence in the record to support the agency's decision.

C. Do they provide for different standards of judicial review?

1. In administrative mandamus, a writ is authorized when there is an abuse of discretion, which "is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." CCP Section 1094.5(b). Except in cases where the court is authorized to exercise its independent judgment, "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." CCP Section 1094.5(b)

2. CCP Section 1085 does not contain a stated standard of review for traditional mandamus. Case law applies the basic abuse of discretion standard, which considers whether the action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give notice as required by law. See, e.g., City of Santa Cruz v. Local Agency Formation Commission of Santa Cruz County, 76 Cal.App.3d 381, (1977).

3. Pub. Res. Code section 21168.5 establishes an explicit standard of review for CEQA actions. The court is to look only to whether there was a prejudicial abuse of discretion, which "is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence."

4. Is there a practical difference?

The Supreme Court stated that in the CEQA context at least, the dispute is "mostly academic because the standard of review is essentially the same under either section, i.e., whether substantial evidence supports the agency's determination." Laurel Heights Improvement Ass'n v. Regents of the University of California, 47 Cal.3d 376, 392, n. 5 (1989). The Court stated that the standard of review under 21168.5 is "consistent with the requirement that the agency's approval of an EIR 'shall be supported by substantial evidence in the record.'" Id. at 392-393.

 

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