After an adverse decision, such as a decision by a Board or Department to revoke a license, a licensee has as little as 30 days to appeal that decision to the Superior Court.  This appeal, called a petition for writ of administrative mandamus, seeks a court order commanding the agency to set aside the disciplinary order.  These court cases should only be handled by skilled, experienced license law counsel, to maximize the chances of reversing a loss in the administrative courts.

Deciding on the Right Court

Choosing the court to bring the writ petition in is a critical tactical decision.  In California, three courts, Sacramento County Superior Court, Los Angeles County Superior Court and Alameda County Superior Court, have dedicated courtrooms for writs, and a fourth, San Francisco Superior Court, has law and motion courtrooms that hear writs.  In all other counties, typically, writs are assigned to random civil courtrooms.  Filing a petition for writ of administrative mandamus in a courtroom with a judge experienced with such matters increases the likelihood of a thoughtful, well-reasoned and correct decision on the issues.  However, there can also be tactical advantages to filing in a local courthouse with a judge who rarely sees such cases.

Filing the Writ Petition In Time

As a general rule, a petition for writ of administrative mandamus must be filed within 30 days of the effective date of the disciplinary decision.  This deadline can be extended by requesting the administrative record within 10 days of the effective date of the decision, however, the better practice among attorneys is to follow the shortest deadline to insure the case is not thrown out for being filed too late.  We have in the past filed petitions for writ of administrative mandamus in as little as a few days lead time from the deadline, thanks to our efficiency in preparing these documents, however, it is best to retain counsel as quickly as possible. 

Staying the Adverse Decision

For some licensees, it is important to persuade the Superior Court judge to stay, or stop, the agency’s adverse order disciplining the license from taking effect.  Stays, however, can be difficult to obtain, because the judge must be persuaded on somewhat scant evidence and a brief review of legal arguments that the licensee is likely to win the entire case.  Also, there should be no concern of possible harm to the public.  In cases where an agency altered the proposed decision of the administrative law judge in reaching a final decision, however, the licensee need only show a lack of danger of public harm.  It is sometimes also possible to negotiate a stay with the attorney for the agency.

Winning Legal Arguments

The rule for winning a writ is that the petitioner must show that the licensing agency abused its discretion.  If the dispute is not over whether the licensee should have been disciplined, but rather the degree of discipline, the licensee must show a manifest, or obvious, abuse of discretion, in the setting of the penalty.   The court will review the hearing transcripts, all the evidence, and legal arguments from both sides, to determine if the agency abused its discretion requiring that the Superior Court remedy the situation by setting aside the agency order.

Strong legal arguments include violations of due process, depriving a licensee of a fair hearing; legal errors relating to the statutes or regulations used as the basis for discipline; and factual mistakes that color the outcome of the case.  As a practical matter, judges who consider petitions for writ of mandamus can be persuaded by a sympathetic licensee or a heavy-handed agency.   A case might also be stronger for the licensee if a hearing was never held, such as in the case of a summary or default order; if a licensee’s rights were not fully respected at hearing; or if the agency attorney has improperly influenced the decision-making process to the disadvantage of the licensee.

The essential ingredient for winning a writ of administrative mandamus is hiring an attorney who has handled hundreds of administrative cases, regularly files petitions for writ of mandate, and can spot mistakes and issues to argue for a successful outcome.  Some issues are very subtle or difficult to detect.  If you or someone you know is considering appealing an adverse license decision, they should contact our experienced license defense counsel without delay.