CA Regulatory Explainer: Judicial Review of Regulations

CA Regulatory Explainer: Judicial Review of Regulations By Chris Micheli

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

Note that the right to judicial determination is not affected by the failure of a party to petition or to seek reconsideration of a petition before the agency promulgating the regulation or order of repeal.

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

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.

The approval of a regulation or order of repeal by the Office of Administrative Law (OAL) or the Governor’s overruling of a decision of the OAL disapproving a regulation or order of repeal cannot be considered by a court in any action for declaratory relief brought with respect to a regulation or order of repeal.

Finally, in a proceeding under this section of law, a court may only consider the following evidence:

·         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the validity of a regulation or order of repeal which the OAL has disapproved, or of a regulation that has been ordered repealed by bringing an action for declaratory relief in the superior court.

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 office to immediately file the regulation with the Secretary of State.

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