Judicial review of California regulations

California Government Code Section 11350 provides that any interested person may obtain a judicial declaration regarding the validity of any regulation or order of repeal by bringing an action for declaratory relief in superior court in this state in accordance with the Code of Civil Procedure.

In addition, this statutory right to judicial determination is not affected by the failure to petition or to seek reconsideration of a petition before the agency promulgating the regulation or order of repeal. In other words, there is no “exhaustion of administrative remedies” requirement for filing a civil lawsuit to seek judicial relief.

The regulation or order of repeal may be declared to be invalid for a substantial failure to comply with the California Administrative Procedure Act (APA) or, in the case of an emergency regulation or order of repeal, upon the ground that the facts recited in the finding of emergency does not constitute an emergency.

Under the APA, contained in California’s Government Code, specifies that a regulation or order of repeal may be declared invalid if either of the following exists:

• The agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence.
• The agency declaration is in conflict with substantial evidence in the record.

In a proceeding under this section of the Government Code, a court may only consider the following evidence in reviewing a regulation:

• The rulemaking file prepared by the adopting agency.
• The finding of emergency prepared by the adopting agency.
• An item that is required to be included in the rulemaking file, but is not included in the rulemaking file, for the sole purpose of proving its omission.
• Any evidence relevant to whether a regulation used by an agency is required to be adopted under the APA.

Government Code Section 11350.3 specifies that any interested person may obtain a judicial declaration as to the validity of a regulation or order of repeal which the OAL has disapproved, or of a regulation that has been ordered repealed by bringing an action for declaratory relief in the superior court.

Under this statute, the court may declare the regulation valid if it determines that the regulation meets the standards set forth in the APA and that the agency has complied with the APA. If the court so determines, it may order the OAL to immediately file the regulation with the Secretary of State.

The judicial branch in California has the ultimate say over the validity of regulations that are promulgated by the executive branch’s more than 200 agencies and departments that have rulemaking authority. How do state courts consider the validity of regulations?

As an initial matter, in assessing the validity of an administrative rule, “the court’s task is to inquire into the legality of the challenged regulation, not its wisdom. In reviewing the legality of a regulation or policy adopted pursuant to a delegation of legislative power, courts are limited to determining whether it is within the scope of authority conferred on the agency and is reasonably necessary to effectuate the purpose of the statute.” San Diego Nursery Company v. Agricultural Labor Relations Board (1979) 100 Cal.App.3d 128

The task of a court considering the validity of a regulation promulgated by an agency is to decide whether the agency reasonably interpreted its legislative mandate. In re McGhee (2019) 246 Cal.Rptr. 3^rd 834 It may be an obvious statement, but an administrative agency has no discretion to promulgate a regulation that is inconsistent with the governing statute. Terhune v. Superior Court (1998) 65 Cal.App. 4^th 864

In challenging the validity of a regulation, an interested person may pursue either the APA’s pre-adoption administrative remedy, post-adoption judicial remedy, or both. In other words, a civil lawsuit is not dependent on a certain time or certain actions that did or did not take place in the agency rulemaking. Coastside Fishing Club v. California Fish and Game Commission (2013) 215 Cal.App. 4^th 397

To comply with the APA’s requirements for adoption of a regulation, an agency must give the public notice of its proposed regulatory action, issue a complete text of the proposed regulation with a statement of the reasons for it, give interested parties an opportunity to comment on the proposed regulation, respond in writing to public comments, and forward a file of all materials on which the agency relief in the regulatory process to the OAL. Any regulation that substantially fails to comply with these requirements may be judicially declared invalid.  Naturist Action Committee v. Department of Parks and Recreation (2009) 96 Cal.Rptr. 3^rd 620; POET, LLC v. State Air Resources Board (2013) 218 Cal.App. 4^th 681, review denied

A regulation may be declared invalid by a court in this state if (1) the agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence or (2) the agency declaration pursuant to a statute governing notice of proposed adoption is in conflict with substantial evidence in the record. Rabuck v. Superior Court (2013) 221 Cal.App. 4^th 1334, review denied

In considering a vagueness challenge to an administrative regulation, courts do not view the regulation in the abstract, “but rather consider whether it is vague when applied to the complaining party’s conduct in light of the specific facts of the particular case. If it can be given a reasonable and practical construction that is consistent with probable legislative intent and encompasses the conduct of the complaining party, the regulation is valid. While vagueness challenges to a statute arise most commonly in the criminal context, the prohibition again vagueness extends to administrative regulations as well.” Teichert Construction v. California Occupational Safety and Health Appeals Board (2006) 140 Cal.App. 4^th 883

In addition, it would be inappropriate for the court of appeal to invalidate a regulation based on lack of “clarity” under the APA since that issue is for the OAL rather than the court of appeal. The APA provision defining “clarity” does not provide a legal basis for courts to declare a regulation invalid for lack of such clarity. California Association of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App. 4^th 286

Finally, regarding the required economic analysis, a regulation is not necessarily invalid under the APA even if it has a significant adverse economic impact on business. California Association of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App. 4^th 286 Moreover, under the APA, a regulation will not be invalidated simply because of disagreement over the strict accuracy of cost estimated on which the agency relief to support its initial determination. Western States Petroleum Association v. Board of Equalization (2013) 57 Cal. 4^th 401