Writs & Appeals of Administrative Decisions
If you have a medical board hearing before an Administrative Law Judge you have the right to appeal an adverse decision. During a hearing you have the right to Petition the Superior Court for relief in very limited circumstances. This process is called a Writ. The Horowitz Medical Group has experienced appellate lawyers who understand the writ process. Our adminstrative law and peer review trial teams prepare and present your case to properly preserve your appellate options.
How Do Writs & Appeals Work?
You can lose an administrative hearing even when you are right. The OAH system allows hearsay evidence and has few protections to ensure due process. For these reasons, an experienced medical lawyer understands that the hearing process can turn out badly even when the client is correct. This is a harsh reality but at the Horowitz office we focus on reality and not hope when assessing a case. As experienced OAH trial lawyers we makes a record during the administrative hearing in anticipation of having a Superior Court judge review and reverse an adverse decision.
The procedural tool to review an adverse decision is called a writ which is usually a “writ of mandamus” or “writ of prohibition”. It is an appeal and must (generally) be filed 30 days from the effective date of the OAH decision.
What is a Petition for Writ of Mandate?
“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.”
(California Code of Civil Procedure section 1085, subd. (a).)
Two Types of Writ Results
There are two possible positive results from your filing:
1. The court can issue a writ of mandate which will be in the form of an:
Alternate or a peremptory writ.
((California Code of Civil Procedure section 1087)
Alternate Writ
An alternative writ commands the lower court to either do the act required to be performed, or show cause at a specified time and place why it has not been done.
Peremptory Writ
The issuance of a peremptory writ occurs after the lower court fails to show cause. It does not require the party to show cause why the act in question has not been performed.
Writ of Mandate (requires something) or Writ of Prohibition (prohibits something)
Often attorneys file a request as both a writ of mandate and writ of prohibition as different types of relief can be stated in the affirmative or negative. Technically a writ of prohibition restrains the lower court from performing an act while a writ of mandate requires an action.
The safe approach is to file in the alternative because you may ask the Superior Court to restrain the administrative law court from taking a particular action against your license and also to enter a new and different judgment in your favor. As the court stated in Curry v. Superior Court (2013) 217 Cal.App.4th 580 and/or in Lee v. Superior Court (2009) 177 Cal.App.4th 1108, this type of dual approach is completely acceptable.
What Can a Writ Accomplish?
A writ of mandate (mandamus) applies when the court really has no choice. There is no discretion and the law requires action in your favor. (See: Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579; Flores v. Department of Corrections (2014) 224 Cal.App.4th 199, 208.
We have seen writs of mandate considered in peer review hearings when the MEC attorney fails to move within by-law required time limits or the hearing officer applies rules that are clearly thwarting the fundamental rights to a hearing. The catch is that the duty must be absolute.
The writ process can apply after you win the initial writ but the administrative law judge fails to follow the Superior Court instruction. See Butler v. Superior Court (2002) 104 Cal. App. 4th 979, 982 [writ of mandate proper because trial court failed to comply with appellate court’s remand instructions].) See also: Hampton v. Superior Court (1952) 38 Cal.2d 652, 656; accord, People v. Lewis (2004) 33 Cal.4th 214, 228.)
More difficult is the petition for a writ of mandate to compel a factual finding in your favor. Here the administrative law judge has exceptional power. A writ of mandate to compel the exercise of discretion in a particular manner will fail unless you can show that no reasonable version of the facts supports the adverse decision. See: Nathanson v. Superior
Court (1974) 12 Cal.3d 355, 361.)
If you have a licensing hearing pending, our experienced medical trial lawyers will protect your rights.
Call (925) 283-1863