writ of administrative mandamus

In 2017, Ray & Bishop won stay orders in three Superior Court cases, stopping license revocations while our we fought appeals in Superior Court.  Two stays were granted in Board of Registered Nursing cases, permitting the nurses to work with clear licenses while we fought their appeals.  A third stay was granted in a Bureau of Real Estate case, enabling the broker to transact real estate with a clear license while we fought on in court.  The appeal process is a petition for writ of administrative mandamus.  A writ of administrative mandamus, or administrative mandate, can result in an agency decision being overturned.  The Superior Court can order the administrative agency, such as the Board of Registered Nursing, to reverse its decision and not revoke a license.

In most cases a Superior Court judge will only grant a stay order if the judge is convinced that the licensee will prevail on the merits of the appeal.  In other words, a stay order can be a strong early indication that the licensee will win on appeal.  Stay orders can be very difficult to win, because in almost all cases the Attorney General vigorously fights against a stay order being granted.  In all appeal proceedings, all state agencies are represented by the Attorney General from the California Department of Justice.  Petitions for writs of administrative mandamus are typically brought in Sacramento County Superior Court.

After a licensing board has issued an order revoking a license, the very next step to keep the license valid and the licensed practice or business running can be to seek a stay from the agency or from a Superior Court judge.  A “stay” is an order to stop the license revocation order from taking effect.  Stay orders can also be used to stop license probation from starting, or to delay a license suspension.

Seeking a stay is an essential part of asking a licensing agency to reconsider its decision, or asking a Superior Court judge to issue a writ of administrative mandamus setting aside the discipline.  A stay can be requested when a petition for reconsideration is filed with a licensing agency under Government Code section 11521.  A stay for reconsideration is usually short – only 10 days.  A stay for a court to consider a petition for writ of administrative mandamus is usually longer, perhaps several months or more.

The short stay of up to 10 days for a board or agency to reconsider its decision is sometimes easy to get, because it is so short.  The purpose is to give the board or agency head days to decide a petition for reconsideration.  A Superior Court stay can be more difficult to get, because the attorney seeking the stay must usually persuade the court that the licensee is likely to win on appeal and the public interest will not suffer due to the stay.  Although strictly speaking not a part of the law, a judge may also consider the hardship upon the licensee, the effect upon a business, how serious the disciplinary case was, and whether an order short of revocation can adequately protect the public.  This calculation can be complicated, and is best presented by an attorney experienced with writs of administrative mandamus.

A stay can provide a valuable lifeline to remain at a job or in business while a licensee fights harsh or unjust board or agency discipline.  Even if an appeal is ultimately unsuccessful, a stay can provide valuable time to prepare one’s finances or business for the fallout from a license revocation.  A business might be sold or passed to a partner or family member, a past career resuscitated, or a spouse might be given time to get back into the workforce to cushion the blow.  Ray & Bishop, PLC, has won many stays for clients in the very difficult aftermath of an order of license revocation.  Contact us to see if we can help you at rayandbishop.com.

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.