|FROM:||The Legal Taxi|
|RE:||Writ on administrative agency's quasi legislative action formulating a regulation.|
Writ on administrative agency's quasi legislative action formulating a regulation.
Generally, when taking a writ under the standard California Statute of civil procedure CCP 1085 (not an administrative writ) petitioner is limited to the "Administrative Record".
Administrative Record is defined in the Government Code sections 11347.3 et seq. There are some exceptions where extra record materials have been submitted and approved by California appellate courts. I am familiar with the California cases Western States Petroleum Association, Stauffer Chemical Company, Outfitter Properties LLC, and California Oak Foundation -- are there cases from other states or federal cases that I could use as persuasive authority?
See above. There are some documents from the administrative agency s official web site that I want to include in addition to the administrative record they have produced. Also, I now know there were emails which were not produced and there might be other electronically stored information which was not produced.
Standard Research Memo
Generally, when taking a writ under the standard California Statute of civil procedure CCP 1085 (not an administrative writ) petitioner is limited to the "Administrative Record".
Whether court can take notice of extra- records with administrative records under a non administrative writ.
California Statute of Civil Procedure, California Government Code and Case Law.
By way of an executive summary, let us state the following:
1. You want to supplement the administrative record on appeal with two items of information: excerpts from the agency’s website and (potentially) e-mails within the agency that may pertain to its decision-making process.
2. As you perceived on the Western States case, the courts disfavor expanding the record at this stage, although they do not close the door completely supplementing the record in very limited circumstances.
3. Following the Western States case (and citing it), San Joaquin County Local Agency Formation Commission v. Superior Court, 162 Cal. App. 4th 159, 167 (Cal. App. 3d Dist. 2008) comes to an essentially identical conclusion based upon Western States and the relevant statutes.
4. In addition to searching further in California, we searched other state jurisdictions and federal cases. We found none that we believe provide any definitive arguments in your favor, although we do include reference to what we reviewed so that you can check our efforts and determine if you have a precedent (favorable or not) that we may not have appreciated.
Following are the statutes and cases that we have reviewed (including those that you identified). We have included portions at some length for your consideration, and we’ve left in highlighting or added italics that we hope might prove useful to you.
§ 1085. Writ of mandate
- (a) A writ of mandate 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, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.
- (b) The appellate division of the superior court may grant a writ of mandate directed to the superior court in a limited civil case or in a misdemeanor or infraction case. Where the appellate division grants a writ of mandate directed to the superior court, the superior court is an inferior tribunal for purposes of this chapter.
§ 11347.3. File of rulemaking; Contents and availability of file
- (a) Every agency shall maintain a file of each rulemaking that shall be deemed to be the record for that rulemaking proceeding. Commencing no later than the date that the notice of the proposed action is published in the California Regulatory Notice Register, and during all subsequent periods of time that the file is in the agency s possession, the agency shall make the file available to the public for inspection and copying during regular business hours.
- (b) The rulemaking file shall include: ...
- (3) The determination, together with the supporting data required by paragraph (5) of subdivision (a) of Section 11346.5.
- (4) The determination, together with the supporting data required by paragraph (8) of subdivision (a) of Section 11346.5.
- (5) The estimate, together with the supporting data and calculations, required by paragraph (6) of subdivision (a) of Section 11346.5.
- (6) All data and other factual information, any studies or reports, and written comments submitted to the agency in connection with the adoption, amendment, or repeal of the regulation.
- (7) All data and other factual information, technical, theoretical, and empirical studies or reports, if any, on which the agency is relying in the adoption, amendment, or repeal of a regulation, including any economic impact assessment or standardized regulatory impact analysis as required by Section 11346.3.
- (11) Any other information, statement, report, or data that the agency is required by law to consider or prepare in connection with the adoption, amendment, or repeal of a regulation.
- “An unbroken line of cases holds that in traditional mandamus actions challenging quasi-legislative administrative decisions, evidence outside the administrative record (extra-record evidence) is not admissible. [Citations.]” (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1269 [4 Cal. Rptr. 3d 536]) “[E]xtra-record evidence is generally not admissible in traditional mandamus actions challenging quasi-legislative administrative decisions … .”(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576 [38 Cal. Rptr. 2d 139, 888 P.2d 1268] (Western States))
- Limiting review to the administrative record is appropriate due to the scope of review. An action or proceeding to attack a determination of SJLAFCO extends “only to whether there was fraud or a prejudicial abuse of discretion. Prejudicial abuse of discretion is established if the court finds that the determination or decision is not supported by substantial evidence in light of the whole record.” (Gov. Code, § 56107, subd.(c).) This substantial evidence review is purely a question of law and is limited to the administrative record. (Western States, supra, 9 Cal.4th at pp. 570–571.)
- Permitting the admission of extra-record evidence would also infringe upon the separation of powers. The Legislature has delegated quasi-legislative authority to SJLAFCO under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. (Gov. Code, § 56000 et seq.) Excessive judicial interference with
- SJLAFCO s “quasi-legislative actions would conflict with the well-settled principle that the legislative branch is entitled to defence from the courts because of the constitutional separation of powers. [Citations.]”(Western States, supra, 9 Cal.4th at p. 572.)
- The District contends its discovery request falls within an exception permitted by Western States, supra, 9 Cal.4th 559. In Western States, the court identified an exception that was “to be very narrowly construed. Extra-record evidence is admissible under this exception only in those rare instances in which (1) the evidence in question existed before the agency made its decision, and (2) it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record.”(Id. at p. 578, original italics.)
- The District contends another exception to the rule of no extra-record evidence applies. In Western States, the court outlined only one narrow exception to the rule of no extra-record evidence. It left open the possibility, however, that there might be other exceptions. “[W]e do not foreclose the possibility that extra-record evidence may be admissible in traditional mandamus actions challenging quasi-legislative administrative decisions under unusual circumstances or for very limited purposes not presented in the case now before us.” (Western States, supra, 9 Cal.4th at p. 578.) The court cited to Asarco, Inc. v. U. S. E. P. A. (9th Cir. 1980) 616 F.2d 1153, 1160, which stated extra-record evidence, might be admissible for background information or for the limited purpose of ascertaining whether the agency considered all relevant factors or fully explicated its decision. The Western States court also noted that commentators had proposed several exceptions for evidence relevant to issues such as standing and capacity to sue, affirmative defenses, accuracy of the administrative record, procedural unfairness and agency misconduct. (Western States, supra, 9 Cal.4th at pp. 575–576, fn. 5.) The court made clear, however, “extra-record evidence can never be admitted merely to contradict the evidence the administrative agency relied on in making a quasi-legislative decision or to raise a question regarding the wisdom of that decision.”(Id. at p. 579.)
- In any event, even if an exception to Western States, supra, 9 Cal.4th 559, was established, the information sought under the discovery order falls under the deliberative process privilege. “Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.”(Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 540 [85 Cal. Rptr. 2d 257, 976 P.2d 808].) The privilege rests on the policy of protecting the “decision making processes of government agencies.”
- (Id. at p. 541.) “The key question in every case is whether the disclosure of materials would expose an agency s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency s ability to perform its functions.”
- Prohibiting inquiry into thought processes of SJLAFCO commissioners exercising quasi-legislative powers comports with the separation of powers. In an ordinary mandamus review of a legislative or quasi-legislative decision, courts decline to inquire into thought processes or motives, but evaluate the decision on its face because legislative discretion is not subject to judicial control and supervision. (Mike Moore s 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1305 [53 Cal. Rptr. 2d 355].)
- Nor can the District obtain this information by casting it as an inquiry into procedural irregularities. In City of Santa Cruz v. Superior Court (1995) 40 Cal.App.4th 1146 [48 Cal. Rptr. 2d 216], a developer challenged adoption of a general plan and sought to depose councilmen as to whether there was an agreement to refuse to consider any zoning for greenbelt properties other than agricultural regardless of the evidence presented. The developer argued it sought inquiry only into the approval process, not thoughts and motivations. The court disagreed. It found the inquiry “relates to the substance of the legislators decision, which was to reserve the greenbelt properties for agricultural purposes only, and to when the legislators arrived at their decision.” (Id. at p. 1156.) Such inquiry was forbidden. (Id. at p. 1157.)
- The District does not address the issue of privilege; instead, it argues SJLAFCO s writ petition is premature. The District argues that because the discovery order requires disclosure of only unprivileged information, an actual dispute may never arise. The District contends SJLAFCO has not shown an abuse of discretion in the discovery order. We disagree.
- A trial court discovery order is reviewed under the abuse of discretion standard. (Cadiz Land Co. v. Rail Cycle, supra, 83 Cal.App.4th at p. 117.)“The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action … .’ Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion. [Citation.]”(City of Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1297 [255 Cal. Rptr. 704].) Here the discovery order transgresses the confines of Western States, supra, 9 Cal.4th 559; it permits discovery of matters that are not admissible in a challenge to a quasi-legislative decision.
- Further, the discovery order violates the deliberative process privilege. The District contends the information sought here is distinguishable from that in City of Fairfield v. Superior Court, supra, 14 Cal.3d 768. There the disappointed applicant sought discovery of the evidence examined and relied upon by the commission and its reasoning process in rejecting the application. (Id. at p. 773.) The same is sought here. The District seeks what information SJLAFCO had when it made the decision and what information was necessary to change the minds of the commissioners.
- The discovery order requires the deponents to provide information that is not admissible under Western States, supra, 9 Cal.4th 559, because it is extra-record evidence and is privileged because it goes to the decision making process of the commissioners. Permitting such discovery was an abuse of discretion.
- Moreover, extra-record evidence is not necessarily admissible in all traditional mandamus cases. The Supreme Court has held that extra-record evidence is generally inadmissible in traditional mandamus actions challenging quasi-legislative administrative decisions under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.), though extra-record evidence may be admitted in traditional mandamus actions challenging ministerial or informal administrative actions.(Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 576.)
- Moreover, judicial review of a quasi-legislative action is limited to ordinary mandamus (Code Civ. Proc., § 1085) rather than administrative mandamus (Code Civ. Proc., § 1094.5). (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 809 [114 Cal.Rptr. 577, 523 P.2d 617]; Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 34, fn. 2.) CA(4)(4) Unlike the broad scope of review provided in administrative mandamus proceedings, review by ordinary mandamus is confined to an examination of the agency proceedings to determine whether the action taken is arbitrary, capricious or entirely lacking in evidentiary support, or whether it failed to conform to procedures required by law.(Ibid.)
- In assessing the validity of a quasi-legislative regulation in an action for mandamus under Code of Civil Procedure section 1085, “[o]ur inquiry necessarily is confined to the question whether the classification is “arbitrary, capricious, or [without] reasonable or rational basis.”[Citations.]’”(Yamaha, supra, 19 Cal.4th at p. 11.) Furthermore, “[u]nless otherwise provided by law, ‘the petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.’ (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154 [43 Cal. Rptr. 2d 693, 899 P.2d 79].) Thus, it is petitioner s burden to establish that [the agency s] decision was arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” (Khan v. Los Angeles City Employees Retirement System (2010) 187 Cal.App.4th 98, 106 [113 Cal. Rptr. 3d 417].)When inquiring into whether a regulation is arbitrary, capricious, or lacking in evidentiary support, the “ ‘ “ ‘ “court must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” [Citation.]’ ” ’ ” ( Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1466 [102 Cal. Rptr. 3d 446] (Golden Drugs).) Because we address the validity of the amendments as adopted in 2002, we consider only the administrative record before the agency at that time.
- In determining whether extra-record evidence is admissible, a court must decide the threshold issue of whether the administrative action under review is quasi-legislative or ministerial.(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 575–576 [38 Cal. Rptr. 2d 139, 888 P.2d 1268] (Western States Petroleum).) Our Supreme Court has stated: “ ‘The appropriate degree of judicial scrutiny in any particular case is perhaps not susceptible of precise formulation, but lies somewhere along a continuum with no reviewability at one end and independent judgment at the other.’ [Citation.]Quasi-legislative administrative decisions are properly placed at that point of the continuum at which judicial review is more deferential; ministerial and informal actions do not merit such deference, and therefore lie toward the opposite end of the continuum.” (Ibid.)
- Review under administrative mandamus (§ 21168) and review under traditional mandamus (§ 21168.5) share many of the same characteristics. There is no practical difference between the standards of review applied under traditional or administrative mandamus. ( Gentry v. City of Murrieta (1995) 36 Cal. App. 4th 1359, 1375 [43 Cal. Rptr. 2d 170] (Gentry).) The [*1390] remedies available remain the same. ( Woods v. Superior Court (1981) 28 Cal. 3d 668, 673-674 [170 Cal. Rptr. 484, 620 P.2d 1032].) The critical distinction for our purposes is the record available for review. When an agency s quasi-judicial determination is reviewed by administrative mandamus, judicial review is generally limited to the evidence in the record of the agency proceedings. (See § 21168; Code Civ. Proc., § 1094.5, subd. (c).) By recent Supreme Court authority which worked a substantial change in the law, when an agency s quasi-legislative decision is reviewed by traditional mandamus, judicial review is also ordinarily limited to the administrative record.(Western States, supra, 9 Cal. 4th at p. 576.) However, if the action challenges a ministerial or informal administrative action and the facts are in dispute, extra-record evidence may be necessary for adequate review "because there is often little or no administrative record in such cases."
- While Friends attempt to distinguish Western States on numerous grounds, it cannot escape the broad reasoning the Supreme Court used to support its decision. In restricting review of a quasi-legislative decision to the administrative record, the court s overriding concern was that the consideration of extra-record evidence would empower the court to engage in independent fact finding rather than engaging in a review of the agency s discretionary decision. Differences aside, there can be no doubt that Western States substantially weakens Friends position in support of the consideration of extra-record evidence in this case.
- An exception for the admission of evidence "that could not be produced at the administrative level in the exercise of reasonable diligence . . . ." (Western States, supra, 9 Cal. 4th at p. 578.) Citing Code of Civil Procedure section 1094.5, subdivision (e), the court stated, "Extra-record evidence is admissible in administrative mandamus proceedings under such circumstances ( Code Civ. Proc., § 1094.5, subd. (e)) and we see no reason to apply a different rule in traditional mandamus proceedings."(Western States, supra, at p. 578.)But the court further ruled that this exception could not be extended to expert testimony and reports prepared after the agency decision, under the premise that, not having existed then, they could not have been discovered with reasonable diligence. Such a range of admissibility, the court explained, "would seriously undermine the finality of quasi-legislative administrative decisions": a dissatisfied party could produce the report of "an expert who is likewise dissatisfied," obtain a judicial remand, and thereafter repeat the same process.
- Outfitter and the Board agree that this case is a traditional mandamus action under Code of Civil Procedure section 1085 rather than an administrative mandamus action under Code of Civil Procedure section 1094.5. They also agree there are exceptions to the general rule precluding the consideration of extra-record evidence in traditional mandamus actions. Although extra-record evidence is not admissible to contradict evidence upon which the administrative agency relied in making its quasi-legislative decision, or to raise a question regarding the wisdom of that decision (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 579 [38 Cal. Rptr. 2d 139, 888 P.2d 1268] (Western States)), it may be admissible to provide background information regarding the quasi-legislative agency decision, to establish whether the agency fulfilled its duties in making the decision, or to assist the trial court in understanding the agency s decision.(Western States, supra, 9 Cal.4th at pp. 578–579; Asarco, Inc. v. U.S. E.P.A. (9th Cir. 1980) 616 F.2d 1153, 1160; Association of Pacific Fisheries v. Environmental Protection (9th Cir. 1980) 615 F.2d 794, 811–812.)
- Extra-record evidence is admissible to provide background information and, under unusual circumstances, may be admissible for unspecified limited purposes. (Petroleum, supra, 9 Cal.4th at p. 579.) However, “extra-record evidence can never be admitted merely to contradict the evidence the administrative agency relied on in making a quasi-legislative decision or to raise a question regarding the wisdom of that decision.” (Ibid.)
- Evidence outside the administrative record generally is inadmissible to show that the agency has not proceeded in the manner required by law.( Western States Petroleum Assn. v. Superior Court (1995) 9 Cal. 4th 559, 565, 574-576 [38 Cal. Rptr. 2d 139, 888 P.2d 1268].) However, extra-record evidence is admissible if the proponent shows that the evidence existed before the agency made its decision, but that it was impossible in the exercise of reasonable diligence to present it to the agency before the decision was made. ( Id., at p. 578.) Also, arguably, extra-record evidence may be admissible to show "agency misconduct." ( Id., at pp. 575-576, fn. 5.) Thus, if a project opponent argues that the agency failed to proceed in the manner required by law because the EIR failed to disclose information that is not in the administrative record, it must first overcome the general rule that such information is inadmissible by showing that one of these exceptions applies.
In Kilroy v. State of California, 119 Cal. App. 4th 140, 145 (Cal. Ct. App. 2004)the court discussed the term judicial notice:
- Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. [Citation.] Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &McCort (2001) 91 Cal.App.4th 875, 882 [110 Cal. Rptr. 2d 877].)
Another California case that deals with judicial notice Scott v. JPMorgan Chase Bank, N.A., 2013 Cal. App. LEXIS 211, 20-21 (Cal. Ct. App. 2013) where the court wrote:
- while judicial notice may be taken of public records, it may not be taken of the facts asserted within them.(E.g., Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [127 Cal. Rptr. 3d 362] (Herrera) [“While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.”]; Joslin, supra, 184 Cal.App.3d at p. 374 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.”]; see Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063–1065 [31 Cal. Rptr. 2d 358, 875 P.2d 73] (Mangini) [court could not take judicial notice of the truth of conclusions within a report from the U.S. Surgeon General regarding the health effects of
- smoking or the truth of matters reported in a newspaper article], overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262, 1276 [63 Cal. Rptr. 3d 418, 163 P.3d 106].)
- However, taking judicial notice of other materials is not obligatory. The standard rule in administrative cases requires the reviewing court to confine its inquiry to the administrative record unless there is a reason given to justify the expansion of the record. See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). The Ninth Circuit has laid out an array of reasons for which the record might be expanded. First, the district court may expand the record "when necessary to explain the agency s action" by obtaining "from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Id. (internal citation and quotation marks omitted). Second, where "the agency has relied on documents or materials not included in the record," the district court may look beyond the administrative record. Id. Third, "discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action." Id.
- Plaintiff asks the court to "take judicial notice of this publicly available" congressional staff report. Pl. s Mot. for J. at 6 n.2 (citing Global Computer Enters., Inc. v. United States, 88 Fed. Cl. 52, 70 (2009)). While the congressional staff report may qualify for judicial notice, pursuant to Rule 201 of the FEDERAL RULES OF EVIDENCE, this does not exempt plaintiff from having to meet the independent requirements for supplementation of the administrative record in a bid protest. In Global Computer Enterprises, the court took judicial notice of certain publicly available, extra-record materials, which were proffered by the plaintiff, only after concluding that "the agency-produced administrative record d[id] not permit meaningful judicial review," 88 Fed. Cl. at 62, and that supplementation was warranted, id. at 63.
This holding suggests that if you can argue that the record is somehow incomplete, then you stand a much better chance of successfully arguing for admissibility of the website information under the provision of judicial notice.
Your policy arguments under the case law strike us as well made; however, the strong language in the Western States and San Joaquin will likely negate those policy arguments.
You could ask the reviewing court to take judicial notice of the website information, and if refused, attempt an offer of proof (assuming the court allows you some type of hearing of record).
As to the requested EIS data, you can’t make an offer of proof without the evidence in hand, so you might want to suggest an in-camera review by the court pursuant to production of the data. This at least gets this court and any reviewing court to look at the information, even if it doesn’t make it into the record.
Finally, if all of the above fails, you can reference the website information via a brief to the court on the substantive issues. Reference to a public source such as this should prove objectionable, and even if the State objects, what have you lost? The court will have to read it to rule upon it. Again, it gets the information to the court, albeit through the back door.
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