Wednesday, March 30, 2011
The short answer to the question posed in the title of this post is “Yes!” But, as described below, that answer can cut both for and against the California licensee or license applicant who is not represented by skilled licensing counsel.
An exhaustive discussion of the law of post-hearing procedures in administrative law would require a treatise, possibly multi-volume, and is obviously beyond what can be accomplished in these few paragraphs. But the following information provides an overview of what to expect in the typical professional or occupational license hearing in California after the evidence has been put before an Administrative Law Judge in a “fair” hearing procedure.
The Proposed Decision. Contested hearings are presided over by a hearing officer, of course. But the hearing officer who presides at the hearing may or may not be the ultimate decision-maker in the case. In California, disputes about State professional and occupational licenses are heard by an Administrative Law Judge, or ALJ, employed by the State of California, Department of General Services, Office of Administrative Hearings.
In almost all occupational licensing cases, the ALJ is not the ultimate decision-maker. (An important exception is a teacher credentialing case, which is heard by a three-person Commission, with an ALJ presiding; it issues final decisions.) In most kinds of cases, the ALJ hears the evidence, makes findings of fact and conclusions of law based on the evidence he or she has heard, and then renders a proposed decision in writing that relies on and incorporates those findings and conclusions. The licensing agency itself—often the agency’s top officer or its governing board—is ordinarily the ultimate decision-maker.
The law provides that within 30 days of the conclusion of the hearing, the ALJ will prepare a proposed decision in writing and submit it to the decision-maker. It is very common for that 30-day deadline to be extended. Within 30 days of the receipt of the proposed decision by the licensing agency, the agency must file a copy as a public record and serve a copy on all parties. You can click here to see what one of these proposed decisions looks like.
Agency Review of an ALJ’s Proposed Decision. Although contested administrative hearings are ordinarily open to the public, agency reviews of proposed decisions may be, and usually are, conducted in private. In reviewing an ALJ’s proposed decision, the agency may take one of five possible actions: (1) adopt the proposed decision in its entirety, (2) reduce the proposed penalty and adopt the remainder of the proposed decision, (3) make technical or other minor changes in the proposed decision and adopt it as modified, (4) reject the proposed decision and refer the case back to the ALJ to take additional evidence and prepare a new proposed judgment, or (5) reject the proposed decision and decide the case itself after reading the record of the evidence taken at the hearing. In this last option, the licensing agency may or may not allow or ask for additional evidence and may allow the parties to submit additional written or oral argument before the agency makes its decision. If the licensing agency asks for or allows additional evidence or oral argument, those matters will occur in an open public proceeding.
Once 100 days have passed from the delivery of the proposed decision to the agency, and the agency has failed during that time to notify the parties that the proposed decision is not adopted, the proposed decision is adopted in its entirety by operation of law – that is, without any further action by the parties.
In the great majority of cases, the agency adopts the proposed decision in its entirety. With certain exceptions, the decision is effective 30 days after the agency mails or delivers it to the licensee.
Rehearing, Reconsideration, Stay and Administrative Appeal. Most agencies allow a licensee to seek a rehearing or reconsideration of a decision, but these requests are seldom granted. Some agencies lack the power to rehear or reconsider their decisions. It is also possible to obtain a delay—called a “stay”—of the effective date of a license revocation or suspension. Some agencies are empowered by statute to allow administrative appeals of decisions to various bodies within the agency itself.
Even where a licensing agency is unlikely to grant a request for rehearing or reconsideration, it may be important for the licensee or license applicant to make a formal, well-supported request for such action. By such request, important legal issues that could cause the case to be reversed by subsequent review in Superior Court can be properly framed and supported. It also happens occasionally that, by identifying a challenging legal issue in a request for rehearing or reconsideration, the licensing agency may decide that it does not want to take a risk that the matter will be appealed to the Superior Court, where the agency may suffer a result it does not want, one that could turn out to be applicable to all of its cases. So, sometimes, a strong request for reconsideration or rehearing will result in a successful settlement agreement of an individual case, even though the fair hearing on the evidence has already occurred.
Judicial Review of the Ultimate Decision. At some point, all efforts to rehear, reconsider, stay or otherwise administratively appeal the decision have been exhausted, and the decision is effective. The effective date of the decision is important, because that date starts the running of the time within which the licensee, license applicant, or other responding party may file a petition in the Superior Court seeking to overturn the agency’s decision. Whether or not to challenge the agency’s decision through this formal court process is a significant decision that must be carefully weighed and discussed by the licensee with his or her attorney.
A challenge of the licensing agency's decision in Superior Court will be heard in the department of the court known as “Writs and Receivers.” Writs and Receivers does not ordinarily take additional evidence — the judge in that department reviews the record of the evidence admitted at the hearing before the ALJ — to determine if there are errors of law or an insufficient evidentiary basis for the agency’s decision. Typically, if the court decides that the agency’s decision is wrong, based on the record of the evidentiary hearing, the court will not order a different result. Instead the court will “remand” — or send the matter back — to the licensing agency with instructions to correct its error. Sometimes complying with that instruction requires a new hearing or a “re-opening” of the earlier hearing to allow for the taking of additional evidence. More often, complying with a remand by the Superior Court results in the agency simply modifying or reversing its initial decision.
Appeals to the Writs and Receivers Department of Superior Court are an “expedited” process. There is sometimes a substantial delay necessary, because the transcript of the evidentiary hearing must be prepared and approved. But once the transcript is in hand, the case record is filed with the court and a date is set for the court to hear argument about the case — usually about eight weeks out from the date of filing.
The Petition for Writ procedure is not expensive as legal matters go. There are no depositions, interrogatories or other time-consuming and expensive discovery processes. There is no gathering of new or additional evidence, no taking of testimony. Even before the matter is called on the day of the Superior Court hearing, the court will have reviewed the transcript and the exhibits admitted into evidence at the prior hearing and usually will have read and considered the parties’ written arguments. The court will then allow the attorneys to argue briefly, and then the court will rule, either orally from the bench or within a few days in a written Order. The court hearing takes less than an hour in most cases. Appeals can be taken from the Superior Court’s final order.
Reinstatement of a Suspended or Revoked License. After a period of time — usually one year, but there are exceptions — has passed from a decision revoking or suspending a license, or from an order placing probationary conditions on a license, the licensee ordinarily may petition the decision-making agency for reinstatement of the license or for relief from any probationary conditions. The burden that the licensee faces is severe in these situations: he or she will need to establish, by clear and convincing proof, that the relief sought is merited. This isn’t easy, but a convincing showing of rehabilitation, present good character, good conduct, subsequent education, training and services, a remorseful state of mind and, if appropriate, restitution to any people harmed by the licensee’s past conduct all can help to convince the agency to grant the petition. Any agency decision denying one of these petitions can be reviewed in the Superior Court, just as the original decision was.
Many California licensees and license applicants choose to represent themselves at the administrative hearing before the ALJ. One of the reasons that this is always a bad idea is that the licensee or applicant lacks the training to recognize and “tee up” the legal issues that can influence the licensing agency’s decision after the hearing decision by the ALJ. There is nothing more frustrating in licensing law than for the licensee or applicant to obtain a favorable decision from the ALJ following the fair hearing, only to see the licensing agency make a different decision against the licensee. Competent experienced licensing counsel know how to limit the potential for this disappointing result, and they know how to put the agency’s feet to the fire in Superior Court when it happens. If your earning power is or can be significantly strengthened by a California occupational license, then retaining qualified licensing counsel is a cost-effective way to reduce the chance of losing the licensing decision after winning the hearing.