preparing a defensible administrative record · 2013-02-23 · preparing a defensible...

PREPARING A DEFENSIBLE

ADMINISTRATIVE RECORD

Katherine E. Stone Lisabeth D. RothmanState Bar Certified Appellate Specialist Hatch & Parent, A Law Corporation

Myers, Widders, Gibson, 11911 San Vicente Boulevard, Suite

350

Jones & Schneider, L.L.P. Los Angeles, California 90049

5425 Everglades Street Telephone: (310) 440-2251

Ventura, California 93003 Facsimile: (310) 440-9961

Telephone: (805) 644-7188 Email: [email protected]

Facsimile: (805) 644-7621

Email: [email protected]

TABLE OF CONTENTS

Page

1. Introduction................................................................................................................................ 1

2. Legal Requirements for Types of Administrative Records ................................................. 1

A. Traditional Mandamus.................................................................................................. 1

ii

B. Administrative Mandamus........................................................................................... 2

C. CEQA............................................................................................................................... 3

(1) Scope and Contents of the Record ................................................................. 3

(2) Preparation of the Record................................................................................. 8

D. Validation Proceeding ................................................................................................... 9

E. Inverse Condemnation.................................................................................................. 9

F. Other Claims (e.g., Declaratory Relief, Injunction).................................................. 12

3. Legal Issues.............................................................................................................................. 12

A. Contents of the Record............................................................................................... 12

B. Augmenting the Record.............................................................................................. 13

C. Excluding Documents from the Record .................................................................... 14

4. Practical Considerations ......................................................................................................... 18

5. Summary.................................................................................................................................... 19

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Aluisi v. County of Fresno .......................................................................(1959) 159 Cal.App.2d 823

3

Bay-Delta Programmatic EIR Cases .......................... (JC No. 4152, Sacramento Superior Court)

8

Berlinghieri v. Dept. of Motor Vehicles .........................................................(1983) 33 Cal. 3d 392

6

BP Alaska Exploration, Inc. v. Superior Court .................................(1988) 199 Cal.App.3d 1240

17

Browning-Ferris Industries v. City Council .........................................(1986) 181 Cal.App.3d 852

17

Buckhart v. San Francisco Residential Rent Stabilization

and Arbitration Board v. McDonald .................................................(1988) 197 Cal. App. 3d 1032

5

Building Code Action v. Energy Resources Conserv. & Dev. Comm’n (1980) 102 Cal.App.3d

577 6, 17

California First Amendment Coalition v. Superior Court ................ (1998) 67 Cal.App.4th 159

15

Candid Enterprises, Inc. v. Grossmont Union High School .........................(1985) 39 Cal.3d 878

10

Carty v. City of Ojai ....................................................................................(1978) 77 Cal.App.3d 329

v

2

Chaparral Greens v. City of Chula Vista ............................................ (1996) 50 Cal.App.4th 1134

5-6

Chavez v. Civil Service Comm’n

(1978) 86 Cal.App.3d 324......................................................................................................... 13

Citizens for a Better Environment v. California Dept. of Food and Agriculture (1985) 171

Cal.App.3d 704 ..................................................................................................................................... 15

vi

TABLE OF AUTHORITIES (cont’d)

Page(s)

Citizens for Quality Growth v. City of Mt. Shasta ...............................(1988) 198 Cal.App.3d 433

8

City of Los Angeles v. Superior Court ................................................... (1995) 40 Cal.App.4th 593

7

City of Santa Cruz v. Local Agency Formation Commission ...................... (1978) 76 Cal.App.3d 381

1, 6, 9, 13, 17

County of Orange v. Superior Court ....................................................... (2003) 113 Cal.App.4th 1

5-7, 19

DeVita v. County of Napa ................................................................................... (1995) 9 Cal.4th 763

1

Dominey v. Dept. of Personnel Admin. ..................................................(1988) 205 Cal.App.3d 729

6, 17

Elysian Heights Residents Assn., Inc. v. City of Los Angeles ...............(1986) 182 Cal.App.3d 21

7

Ensign Bickford Realty Corp. v. City Council .......................................(1971) 68 Cal.App.3d 467

2

Foster v. Civil Serv. Comm’n ...................................................................(1983) 142 Cal.App.3d 444

13

vii

Friends of Westwood, Inc. v. City of Los Angeles ................................(1987) 191 Cal.App.3d 259

2

Gentry v. City Murietta .......................................................................... (1995) 36 Cal.App.4th 1359

17

Government Suppliers Consolidating Services, Inc. v. Bayh .... (S.D. Ind. 1990) 133 F.R.D. 531

16

Grine II v. Coombs .....................................................(W.D. Pa. 1997) 1997 U.S. Dist. LEXIS 19578

16

viii


Page(s)

Hadley v. City of Ontario ...........................................................................(1974) 43 Cal.App.3d 121

13

Harris v. City of Philadelphia .....................................(E.D. Pa. 1995) 1995 U.S. Dist. LEXIS 7908

16

Harris v. County of Riverside ..................................................................(9th Cir. 1990) 904 F.2d 497

2

Healing v. California Coastal Commission ....................................... (1994) 22 Cal.App.4th 1158

9-10

Hensler v. City of Glendale

(1994) 8 Cal.4th 1...........................................................................................................9-12, 14

Horn v. County of Ventura ..................................................................................(1979) 24 Cal.3d 605

2-3

Hothem v. City and County of San Francisco ......................................(1986) 186 Cal.App.3d 702

13

Kawaoka v. City of Arroyo Grande ......................................................(9th Cir. 1994) 17 F.3d 1227,

cert. denied, 513 U.S. 870 ...................................................................................................18-19

Kennedy Wholesale, Inc. v. State Bd. Of Equalization ..................................(1991) 53 Cal.3d 245

7

ix

Larson v. State Personnel Bd. ................................................................. (1994) 28 Cal.App.4th 265

5

Lesher Communications, Inc. v. City of Walnut Creek ..................................(1990) 52 Cal.3d 531

7

Lockard v. City of Los Angeles ..........................................................................(1949) 33 Cal.2d 453

2

Lucas v. South Carolina Coastal Council ..................................................... (1992) 505 U.S. 1003

10

x


Page(s)

Marylander v. Superior Court ............................................................. (2000) 81 Cal.App.4th 1119

15

Morgan v. Community Redevelopment Agency ...................................(1991) 231 Cal.App.3d 243

9

Mountain Lion Coalition v. California Fish & Game Comm’n .....(1989) 214 Cal.App.3d 1043

7

Mumaw v. City of Glendale .....................................................................(1969) 270 Cal.App.2d 454

3

Natural Resources Defense Council v. Fox .............(S.D.N.Y. 1998) 1998 U.S. Dist. LEXIS 4575

16

North Dartmouth Properties, Inc. v.

Dept. of Housing and Urban Development .................................(D. Mass. 1997) 984 F. Supp. 65

16

Pacifica Corp. v. City of Camarillo .......................................................(1983) 149 Cal.App.3d 168

3

Park Area Neighbors v. Town of Fairfax ............................................ (1994) 29 Cal.App.4th 1442

3

Patterson v. Central Coast Regional Comm. .........................................(1976) 58 Cal.App.3d 833

3

xi

Pomona Valley Hospital Medical Center v. Superior Court .............. (1997) 55 Cal.App.4th 93

14

Prentiss v. City of South Pasadena ............................................................... (1993) 15 Cal.App.4th 85

2

Protect Our Water v. County of Merced .............................................. (2003) 110 Cal.App.4th 362

7-8, 13, 18

River Valley Preservation Project v. Metropolitan Transit Dev. Bd. (1995) 37 Cal.App.4th

154 8

xii


Page(s)

Roberts v. City of Palmdale ................................................................................ (1993) 5 Cal.4th 363

16

Rogers v. Superior Court ......................................................................... (1993) 19 Cal.App.4th 468

15

Romero v. County of Santa Clara ............................................................(1970) 3 Cal. App. 3d 700

7

Running Fence Corp. v. Superior Court ................................................(1975) 51 Cal.App.3d 400

7

Sierra Club v. Contra Costa County ................................................... (1992) 10 Cal.App.4th 1212

6

Stanislaus Audubon Society, Inc. v. County of Stanislaus ................ (1995) 33 Cal.App.4th 144

6

State v. Superior Court .......................................................................................(1974) 12 Cal.3d 237

2, 12

State Water Resources Control Board Cases ........... (JC No. 4118, Sacramento Superior Court)

9

Strumsky v. San Diego County Employees Retirement Assn. .........................(1974) 11 Cal.3d 28

13

Times Mirror Co. v. Superior Court ...............................................................(1991) 53 Cal.3d 1325

15

xiii

Topanga Association for a Scenic Community v. County of Los Angeles .(1974) 11 Cal.3d 506

3

Trans Union LLC v. FTC ....................................................................(DDC 2001) 141 F.Supp.2d 62

15

Western States Petroleum Association v. Superior Court of Los Angeles (“WSPA”) (1995) 9

Cal.4th 559................................................................................................................................... 2, 14, 17

xiv


Page(s)

Yost v. Thomas ......................................................................................................(1984) 36 Cal.3d 561

1

Youngblood v. Board of Supervisors ................................................................(1978) 22 Cal.3d 644

2

xix

Authorities

Code of Civil Procedure sections 860, et seq. ................................................................................ 1, 9

Code of Civil Procedure section 863 ................................................................................................... 9

Code of Civil Procedure section 864 ................................................................................................... 9

Code of Civil Procedure section 1085 ................................................................................................. 1

Code of Civil Procedure section 1094.5 ...........................................................................................1-3

Code of Civil Procedure section 1094.5(a).......................................................................................8-9

Code of Civil Procedure section 1094.5(b) ......................................................................................... 3

Code of Civil Procedure section 1094.5(c)................................................................................ 3, 5, 13

Code of Civil Procedure section 1094.5(e).................................................................................... 3, 14

Code of Civil Procedure section 1094.6(c) ..................................................................................... 5, 8

Code of Civil Procedure sections 1084-1097...................................................................................... 1

Code of Civil Procedure section 2018(b) ......................................................................................... 17

Evidence Code section 664................................................................................................................... 7

Evidence Code section 1040............................................................................................................... 14

xx

Government Code section 11523 ....................................................................................................... 12

xxi


Page(s)

Government Code section 56103 ......................................................................................................... 9

Government Code section 56105 ......................................................................................................... 9

Government Code section 56107(c)..................................................................................................... 9

Government Code section 6254(a)..................................................................................................... 15

Government Code section 6254(k)..................................................................................................... 14

Government Code section 6254.5 ...................................................................................................... 18

Government Code section 65009(b)(1)................................................................................................ 2

Government Code section 65252.2(I)(4).............................................................................................. 2

Health & Safety Code section 33501(a).............................................................................................. 9

Health & Safety Code sections 33360-33364 ..................................................................................... 9

Public Resources Code sections 21000, et. seq. ............................................................................... 1

Public Resources Code section 21083.1 ..........................................................................................6-7

Public Resources Code section 21167.6 ......................................................................................3, 5-6

Public Resources Code section 21167.6(a)......................................................................................... 8

xxii

Public Resources Code section 21167.6(b) ...............................................................................7-8, 19

Public Resources Code section 21167.6(d) .................................................................................. 6, 19

Public Resources Code section 21167.6(e) ..........................................................................5-7, 16-17

Public Resources Code section 21167.8(f) ......................................................................................8-9

Public Resources Code sections 21167-21168.5................................................................................ 1

xxiii


Page(s)

Other Authorities

64 Opinion California Attorney General 317 .................................................................................... 15

CEQA Guidelines section 15005(a) ..................................................................................................... 5

CEQA Guidelines section 15148 ........................................................................................................ 17

Los Angeles Superior Court local rule 9.24(j).................................................................................. 19

Miscellaneous

California Administrative Mandamus §6.6 .................................................................................... 12

California Administrative Mandamus §6.8 ...................................................................................... 3

California Administrative Mandamus §10.4 .................................................................................. 13

Kostka & Zischke, .......................... Practice Under the California Environmental Quality Act

6-7

Osher and Wild,

“Deliberative Process Privilege Shields Agencies’ Deliberations,”

Los Angeles Daily Journal [August 20, 2002] ................................................................... 15

Remy, Thomas, Moose & Manley,

Guide to the California Environmental Quality Act [“Remy”]...........................5-7, 16-18

1

1. Introduction.

This paper will discuss creating a defensible administrative record from the perspective

of local agencies when they approve or deny projects. The types of actions encountered by

cities requiring administrative records typically include mandamus actions challenging

legislative decisions such as general and specific plan amendments and zoning amendments

(C.C.P. § 1085); adjudicatory actions such as tentative maps, variances, conditional use permits

and coastal development permits (C.C.P. § 1094.5); and approvals governed by the California

Environmental Quality Act (Pub. Res. Code § 21000, et. seq. [“CEQA”]). The need for

administrative records is not limited to mandate actions however. Validation proceedings and

inverse condemnation actions may require preparation of an administrative record. Cases

against cities often involve all these types of claims and, if brought by a landowner, may also

be joined with an inverse condemnation claim and other claims for damages. Because the trial

in these types of cases is often based exclusively on the administrative record, city attorneys

should become involved in making the administrative record during the administrative process

and supervise the preparation of the record for court proceedings. Of course, this approach is

based on the usual role of the city as respondent in the litigation. Where the city is the

petitioner, considerations concerning the scope of the record are different.

This paper will discuss types of administrative records, legal issues and practical

considerations. Except in the area of CEQA, there is very little statutory or case law on the

contents, format or process for making an administrative record. Much of the information in this

paper, therefore, is necessarily based on experience in handling various types of cases involving

administrative records in courts throughout the state.

2. Legal Requirements for Types of Administrative Records.

The administrative record plays an important role in many types of litigation challenging

local agency decisions. The legal requirements for the administrative record vary with the type

of agency action challenged. The most common legal proceedings are mandamus (mandate)

cases which are governed by Code of Civil Procedure sections 1084-1097. These rules apply to

traditional mandamus and administrative mandamus. Special procedures for CEQA cases are

contained in Public Resources Code sections 21167-21168.5. Other types of cases, such as

validation proceedings, Code of Civil Procedure sections 860, et seq., do not specify rules for the

administrative record.

A. Traditional Mandamus.

2

Traditional mandamus, Code of Civil Procedure section 1085, is the procedure for judicial

review of local legislative and ministerial decisions. Legislative actions include the adoption or

amendment of a general or specific plan (Yost v. Thomas (1984) 36 Cal.3d 561, 570); zoning (id.);

incorporation and annexation (see, City of Santa Cruz v. Local Agency Formation Commission

(1978) 76 Cal.App.3d 381, 386) and initiative measures (DeVita v. County of Napa (1995) 9

Cal.4th 763). Legislative actions establish rules or policies of general application. By contrast,

ministerial actions involve little discretion or judgment and the public official merely applies objective

standards to the facts. Ministerial decisions include issuance of a building permit (Prentiss v. City of

South Pasadena (1993) 15 Cal.App.4th 85, 89; cf., Friends of Westwood, Inc. v. City of Los

Angeles (1987) 191 Cal.App.3d 259 [discretionary under city’s code]); approval of a final

subdivision map (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 656); and approval

of a second unit (Gov’t Code § 65252.2(I)(4)).

There are no special procedures for the preparation and certification of the administrative

record in traditional mandamus proceedings. Where a legislative decision is challenged, there

will normally have been an administrative proceeding, during which potential litigants are

required to raise all factual and legal issues they intend to litigate. (See, e.g., Gov’t Code §

65009(b)(1).) In such cases, the trial will normally be limited to the administrative record. When

legislation is adopted by initiative, however, there will not be an administrative record and the

court may consider a variety of evidence such as ballot materials, the existing general plan, and

the circumstances surrounding the election.

The scope of judicial review of legislative decisions is extremely deferential. Courts may

not overturn a legislative decision unless it is arbitrary, capricious, wholly lacking in evidentiary

support or fails to conform to the procedures required by law. (See, e.g., Horn v. County of

Ventura (1979) 24 Cal.3d 605, 612; Carty v. City of Ojai (1978) 77 Cal.App.3d 329, 333, n. 1.)

There is no statutory requirements for a “fair hearing” and due process considerations generally

do not apply to legislative decisions. (See, Lockard v. City of Los Angeles (1949) 33 Cal.2d 453,

460-461; Harris v. County of Riverside (9th Cir. 1990) 904 F.2d 497, 502 [due process requirements

only apply where landowner deprived of protected property interest].) Findings are not required

unless required by a statute. (Ensign Bickford Realty Corp. v. City Council (1971) 68

Cal.App.3d 467, 473.) As such, the administrative record, from the agency’s point of view, may

be more limited than that for administrative mandamus. A reporter’s transcript of the hearing,

for example, may be excluded because the motives and statements of individual councilmembers

are irrelevant. (Id. at 477.) The adopting resolution or ordinance should, however, demonstrate

the legitimate governmental purpose for the legislation and make any required statutory findings,

such as general plan consistency.

Where a ministerial act is challenged, there is generally little or no administrative record

because the planning commission or city council has taken no action. Therefore, evidence

outside the record is generally admissible. (See, Western States Petroleum Association v.

3

Superior Court of Los Angeles (“WSPA”) (1995) 9 Cal.4th 559, 575.)

B. Administrative Mandamus.

Administrative mandamus, Code of Civil Procedure section 1094.5 is the exclusive remedy

for review of adjudicatory decisions where a hearing is required by law. (State v. Superior Court

(1974) 12 Cal.3d 237, 249.) Adjudicatory decisions are those where the local agency applies

existing policy to the facts. (Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 176.)

Code of Civil Procedure section 1094.5 only applies to a “final administrative order or decision

made as the result of a proceeding in which by law a hearing is required to be given, evidence

is required to be taken, and discretion in the determination of facts is vested in the inferior

tribunal....” Such decisions include tentative subdivision maps (Horn, 24 Cal.3d 605, 614),

variances (Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11

Cal.3d 506, 517), conditional use permits (Horn, 24 Cal.3d 605, 614), and coastal development

permits (Patterson v. Central Coast Regional Comm. (1976) 58 Cal.App.3d 833, 840-841).

Due process and a fair hearing are required for an adjudicatory proceeding. (Horn, 24

Cal.3d 605, 612.) Findings in support of the decision are ordinarily required. (Topanga

Association for a Scenic Community, 11 Cal.3d 506, 515-516.) The standard of judicial review

is less deferential than for legislative decisions. The judicial inquiry includes whether there was

a fair hearing and whether there was a prejudicial abuse of discretion. Abuse of discretion is

established if the agency has not proceeded in the manner required by law, the decision is not

supported by findings or the findings are not supported by substantial evidence in the

administrative record. (C.C.P. § 1094.5(b).) Potential litigants are required to exhaust their

administrative remedies and raise all issues, legal and factual, during the administrative process.

(Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447.) Evidence outside

the administrative record is generally not admissible. (C.C.P. § 1094.5(e).) The statute sets forth

some procedures for preparation of the record by the agency but not for certification.

Accordingly, it is important that the administrative record be complete and accurately

reflect the basis for the agency’s decision in adjudicatory proceedings. A reporter’s transcript

of the hearing should normally be included. (See, Mumaw v. City of Glendale (1969) 270

Cal.App.2d 454, 458.) Arguably, Civil Procedure Code section 1094.5(c) requires the agency to

provide a verbatim record when the substantial evidence test is the applicable standard.

(California Administrative Mandamus §6.8 at 155, CEB 3d ed. 2003.) A transcript may be

constitutionally required where there is a claim of denial of due process or a fundamental vested

right is involved. (See, Aluisi v. County of Fresno (1959) 159 Cal.App.2d 823, 827-828.) It is

advisable to have a court reporter present for such proceedings (e.g., revocation of a use permit;

disciplinary proceedings) to insure an accurate transcript. The city attorney should actively

participate in preparing the findings to insure that Topanga and all statutory findings

requirements are met.

4

C. CEQA.

(1) Scope and Contents of the Record.

Unlike statutes governing administrative or ordinary mandate cases, CEQA specifies the

scope and contents of the administrative record to be prepared for litigation. Public Resources

Code section 21167.6 provides in relevant part:

“Notwithstanding any other provision of law … all of the following shall

apply:

* * *

“(e) The record of proceedings shall include, but is not limited to, all of the

following items:

“(1) All project application materials;

“(2) All staff reports and related documents prepared by the respondent

public agency with respect to its compliance with the substantive and procedural

requirements of this division and with respect to the action on the project.

“(3) All staff reports and related documents prepared by the respondent

public agency and written testimony or documents submitted by any person

relevant to any findings or statement of overriding considerations adopted by the

respondent agency pursuant to this division.

“(4) Any transcript or minutes of the proceedings at which the

decisionmaking body of the respondent public agency heard testimony on, or

considered any environmental document on, the project, and any transcript or

minutes of proceedings before any advisory body to the respondent public

agency that were presented to the decisionmaking body prior to action on the

environmental documents or on the project.

“(5) All notices issued by the respondent public agency to comply with this

division or with any other law governing the processing and

approval of the project.

“(6) All written comments received in response to, or in connection with,

environmental documents prepared for the project, including responses to the

notice of preparation.

“(7) All written evidence or correspondence submitted to, or transferred

5

from, the respondent public agency with respect to compliance with this division

or with respect to the project.

“(8) Any proposed decisions or findings submitted to the decisionmaking

body of the respondent public agency by its staff, or the project proponent,

project opponents, or other persons.

“(9) The documentation of the final public agency decision, including the

final environmental impact report, mitigated negative declaration, or negative

declaration, and all documents, in addition to those referenced in paragraph (3),

cited or relied on in the findings or in a statement of overriding considerations

adopted pursuant to this division.

“(10) Any other written materials relevant to the respondent public

agency's compliance with this division or to its decision on the merits of the

project, including the initial study, any drafts of any environmental document, or

portions thereof, that have been released for public review, and copies of studies

or other documents relied upon in any environmental document prepared for the

project and either made available to the public during the public review period or

included in the respondent public agency's files on the project, and all internal

agency communications, including staff notes and memoranda related to the

project or to compliance with this division.

“(11) The full written record before any inferior administrative

decisionmaking body whose decision was appealed to a superior administrative

decisionmaking body prior to the filing of litigation.” (Emphasis added).

When a CEQA statute employs the word “shall,” its provisions are mandatory, not

permissive.1 (See, Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 276; CEQA

Guidelines §15005(a) [“‘Must’ or ‘shall’ identified a mandatory element which all public agencies

are required to follow”].) Hence, the key to applying this statute is the phrase “Notwithstanding

any other provision of law... all of the following shall apply.” This phrase has the effect of

limiting the applicability of a relevance test to the inclusion of documents in the record. (See,

e.g., Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1148 n. 12 [The only

relevance standard applicable under section 21167.6(e) exists under subdivision (e)(10) which

pertains to whether the document is relevant “to either CEQA compliance or the accuracy of the

administrative record”].) Section 21167.6(e) operates as a floor, and establishes the minimum

requirements for documents that must be included in the record. (County of Orange v. Superior

1 The parties always have the option to stipulate to exclude documents.

6

Court (2003) 113 Cal.App.4th 1, 8; Remy, Thomas, Moose & Manley, Guide to the California

Environmental Quality Act [“Remy”], p. 619.) Issues concerning the administrative record in

a CEQA action are procedural, not evidentiary because “compilation of an administrative record

is a ministerial task” under section 21167.6. (County of Orange, 113 Cal.App.4th 1, 11.)

The County of Orange Court’s interpretation of section 21167.6’s scope is consistent

with section 21168’s express adoption of the abuse of discretion standard set forth in Civil

Procedure Code section 1094.5(c): abuse of discretion “is established if the court determines that

the findings are not supported by substantial evidence in light of the whole record.” (C.C.P.

§1094.5(c), emphasis added; see also, C.C.P. § 1094.6(c) [Obligation lies with the public agency

to prepare “[t]he complete record of the proceedings”].) Without “such a complete record the

superior court cannot comply with Code of Civil Procedure section 1094.5.” (Buckhart v. San

Francisco Residential Rent Stabilization and Arbitration Board v. McDonald (1988) 197 Cal.

App. 3d 1032, 1036, emphasis in original; see also, Berlinghieri v. Dept. of Motor Vehicles

(1983) 33 Cal. 3d 392, 395; Remy, pp. 618-619 [The record must be produced in its entirety].)

In a CEQA action, section 21167.6(e) defines what constitutes the “whole record.” The

County of Orange’s interpretation of the broad scope of section 21167.6 is also consistent with

section 21083.1’s admonition that courts “not interpret this division … in a manner which

imposes procedural or substantive requirements beyond those explicitly stated….” (Pub. Res.

Code § 21083.1; Chaparral Greens, 50 Cal.App.4th 1134, 1145. Under this standard, even

superseded documents must be included in the record if they were circulated for public review.

(County of Orange, 113 Cal.App.4th 1, 9-10; Stanislaus Audubon Society, Inc. v. County of

Stanislaus (1995) 33 Cal.App.4th 144, 154 [“The fact that a revised initial study was later

prepared does not make the first initial study any less a record entry nor does it diminish its

significance”]; Kostka & Zischke, Practice Under the California Environmental Quality Act

(“Kostka & Zischke”), §23.69, p. 990; Remy, p. 626.)

The broad statutory language and County of Orange’s interpretation of it suggest that

documents that were not publically circulated must also be included in the record. While the

laundry list of required documents in section 21167.6(e) (1)-(9) is fairly straightforward (see

Kostka & Zischke, §23.69, pp. 989-990)2, section 21167.6(e)(10)’s apparent catchall provision of

2 An EIR’s reliance on source documents that are not included as appendices is a trap for the

unwary. Such documents ordinarily are not and need not be included in the record. (Building Code

Action v. Energy Resources Conserv. & Dev. Comm’n (1980) 102 Cal.App.3d 577, 586.) However, if

such studies or documents are part of the agency files or were made available to the public during the

review process, their inclusion is mandatory. (See, Dominey v. Dept. of Personnel Admin. (1988) 205

Cal.App.3d 729, 738 n. 6; City of Santa Cruz, 76 Cal.App.3d 381, 391.) If their contents are relied

upon or necessary to show that findings are supported by substantial evidence, their inclusion is

necessary. (See, Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1224.)

7

“any other written materials relevant to the agency’s compliance with this division or to its

decision on the merits including... all internal agency communications” is potentially problematic

especially given the prevalence of email communication. The breadth of this language is limited

by the express requirement that such documents be “relevant,” and applicable privileges and

other rules allowing for exclusion of documents.3 (See Chaparral Greens, 50 Cal.App.4th 1134,

1148 n. 12 [Documents under subdivision (e)(10) must be relevant “to either CEQA compliance

or the accuracy of the administrative record”]; Kostka & Zischke §23.69, p. 990.)

3 See section 3.C. infra.

In addition, according to Remy, under basic rules of statutory construction, this language

also must be reconciled with, and hence is limited by, the other provisions of section 21167.6(d).

(Remy, p. 622.) A literal interpretation of section 21167.6(e)(10)’s language that “all internal

agency communications including staff notes” would eviscerate the provision which requires

inclusion only of those draft environmental documents that were “released for public review.”

All provisions must be harmonized and not rendered surplusage. (See Kennedy Wholesale, Inc.

v. State Bd. Of Equalization (1991) 53 Cal.3d 245, 249-250 [“‘The law shuns repeals by

implication...’ Thus, to avoid repeals by implication ‘we are bound to harmonize ... provisions’

that are claimed to stand in conflict”], citations omitted; Remy, p. 622.) So for example,

regardless of whether they are contained in the staff file, administrative draft documents

circulated among staff and containing staff comments need not be included in the administrative

record because they were not released for public review. (Remy, p. 622.)

Despite the limiting language contained in section 21167.6(e)(10), the court in County of

Orange employed language that may be used to further broaden the scope of the statute’s

requirements when it said that “the administrative record will include pretty much everything

that ever came near a proposed development or to the agency’s compliance with CEQA in

responding to that development.” (County of Orange, 113 Cal.App.4th 1, 8.) Any attempt by

petitioners to misapply this language to impermissibly expand the already broad scope of the

statute can be thwarted by the statute’s plain language which governs. (See, Lesher

Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543 [Courts cannot “add to

the statute or rewrite it to conform to an assumed intent that is not apparent in the language”];

accord Elysian Heights Residents Assn., Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21,

29; Pub. Res. Code § 21083.1 [CEQA cannot be interpreted to impose requirements beyond those

explicitly stated].) Moreover, County of Orange may be limited to those circumstances in which

a project has been reapproved by an agency after issuance of a writ of mandate voiding previous

project approvals. (See, County of Orange, 113 Cal.App.4th 1, 9-10.)

Ultimately, the contents and scope of the record are within the discretion of the lead

agency, not the petitioner. (See, County of Orange, 113 Cal.App.4th 1, 10, 13; Kostka & Zischke,

8

§23.69, p. 990.) The public agency has the duty to certify the record, and this duty is presumed

to have been regularly performed. (Pub. Res. Code § 21167.6(b); Evid. Code § 664; see also,

Kostka & Zischke, §23.69, p. 992.) This presumption is “conclusive in the absence of contrary

proof.” (See, Running Fence Corp. v. Superior Court (1975) 51 Cal.App.3d 400, 423; Romero

v. County of Santa Clara (1970) 3 Cal. App. 3d 700, 705.)

Because the lead agency is the respondent in CEQA cases and must defend the propriety

of its decision, the reason for this requirement is clear. Failure to include all applicable

documents that demonstrate the existence of substantial evidence supporting the agency

decision and that the agency followed CEQA’s substantive and procedural requirements can

result in reversal of project approval or may prevent a court from ruling on an issue raised in the

litigation since the record must contain matters on which a party relies. (See, Protect Our Water

v. County of Merced (2003) 110 Cal.App.4th 362, 364, 372-373; City of Los Angeles v. Superior

Court (1995) 40 Cal.App.4th 593, 606-607 [Failure to provide a complete administrative record

prevents a court from ruling on an issue raised in the litigation]; Mountain Lion Coalition v.

California Fish & Game Comm’n (1989) 214 Cal.App.3d 1043, 1051 n. 9 [Respondents have the

“obligation to insure the record contains the matter on which they rely”].) If the record is

improperly narrow, the agency runs the risk that the court might find a CEQA violation where

there is none because the evidence necessary to support the agency action is not before the

court. (County of Orange, 113 Cal.App.4th 1, 13 [“[A]ny reduction in its (administrative

record’s) contents is presumptively prejudicial”]; Protect Our Water, 110 Cal.App.4th 362, 364

[“if it is not in the record, it did not happen”].) Accordingly, because the record must be certified

before the statement of issues or opening brief is served (Pub. Res. Code § 21167.8(f)), it

behooves the agency to err on the side of inclusiveness rather than omit documents it may

otherwise be entitled to exclude.4

(2) Preparation of the Record.

CEQA does not require that the agency prepare the record. Rather, it provides three

options: (1) the petitioner may request that the respondent agency prepare the record of

“proceedings relating to the subject of the action” (Pub. Res. Code § 21167.6(a)); (2) the

petitioner may prepare the record itself subject to agency certification of the record’s accuracy

(Pub. Res. Code § 21167.6(b)(2)); or (3) the parties may agree on an alternative method of record

preparation (id.; see also, River Valley Preservation Project v. Metropolitan Transit Dev. Bd.

(1995) 37 Cal.App.4th 154, 182; Citizens for Quality Growth v. City of Mt. Shasta (1988) 198

Cal.App.3d 433, 447-448).

4 As discussed infra, omission of a needed document may be corrected by a motion to augment

the record.

9

Obviously, if the petitioner elects to prepare the record, the petitioner cannot add

documents not contained in the record maintained by the agency. The main reason petitioners

elect to prepare the record is to reduce the cost or to expedite the process if the agency is

understaffed. In CEQA cases, petitioners are responsible for the cost of preparing the record

whether or not they elect to prepare it themselves. (River Valley Preservation Project, 37

Cal.App.4th 154, 180; see also, C.C.P. §§ 1094.5(a) [“Except where otherwise prescribed by

statute, the costs of preparing the record shall be borne by petitioner”], 1094.6(c) [“The local

agency may recover from the petitioner its actual costs for transcribing or otherwise preparing

the record”].) Costs of record preparation are not limited to copying and transcription costs for

a hearing transcript, but also include all reasonable costs incurred such as reviewing, organizing,

and indexing the record. (River Valley Preservation Project, 37 Cal.App.4th 154, 181-182.)

Hence, the petitioner must pay attorney and paralegal time or time spent by agency staff and

consultants with “specialized knowledge” relevant to the task so long as the costs are necessary

and reasonable. (See, id.; Citizens for Quality Growth, 198 Cal.App.3d 433, 447-448; Pub. Res.

Code § 21167.6(f).) Such costs may even include scanning the documents onto CD Rom disks

if the size of the record warrants.5 CEQA requires the party preparing the record to “strive to do

so at reasonable cost in light of the scope of the record.” (Pub. Res. Code § 21167.6(f).)

Petitioners must pay these costs up front as a condition for obtaining the record. (See, C.C.P.

§ 1094.5(a).) The prevailing party may recover the expense of preparing the record as taxable

costs. (Id.)

D. Validation Proceeding.

Validation proceedings conducted pursuant to Code of Civil Procedure section 860, et

seq., are in rem proceedings commenced by an agency to validate a type of quasi-legislative

decision “which under any other law is authorized to be determined pursuant to this chapter”

or by an opponent of the decision to challenge it. (C.C.P. §§ 860, 863.) Types of decisions

subject to validation include “bonds, warrants, contracts, obligations, and evidences of

indebtedness” (C.C.P. § 864), Local Agency Formation Commission determinations regarding

5 Although the issue has not yet been decided on appeal, Superior Court judges in CEQA cases

have determined that the cost of transferring a voluminous record onto disk is part of the record

preparation costs that must be borne by petitioners. (Bay-Delta Programmatic EIR Cases (JC No.

4152, Sacramento Superior Court) [Court determined that computerized record was necessary and cost

not excessive because “the Court’s need for a complete and accessible administrative record supersedes

the individual parties’ preferences concerning the content and preparation of the record – especially

when the Court must decide whether the administrative decision is supported by the evidence”

(December 10, 2001 ruling)]; State Water Resources Control Board Cases (JC No. 4118, Sacramento

Superior Court) [February 23, 2001 ruling upheld $80,000 cost of transferring 47 box administrative

record to disks).]

10

changes of organization, reorganization, or spheres of influence (Gov’t Code § 56103), and

decisions concerning redevelopment plans (Health & Safety Code § 33501(a)). Because

validation proceedings are based on quasi-legislative actions, judicial review is limited to an

examination of the record before the decisionmakers “to test for sufficiency with legal

requirements.” (Morgan v. Community Redevelopment Agency (1991) 231 Cal.App.3d 243, 258.)

The contents of the record for validation proceedings are comparable to that for other quasi-

legislative decisions unless specified by statute. For example, the form of objections to

redevelopment plans and applications for sphere of influence determinations and annexations

are specified by statute (see, Health & Safety Code §§ 33360-33364; Gov’t Code § 56105), and

obviously should be included in any administrative record. In addition, although LAFCO

determinations are quasi-legislative (City of Santa Cruz, 76 Cal.App.3d 381, 388), judicial review

is based on the substantial evidence standard (Gov’t Code § 56107(c)). The administrative

record for a challenge to a LAFCO decision, therefore, should be broad in scope as for a quasi-

adjudicatory decision, but may also contain documents that were not publically disclosed. (City

of Santa Cruz, 76 Cal.App.3d 381, 388, 391, 392.) While extra-record evidence ordinarily is

prohibited, if challenges to the validity of the agency’s decision are predicated on allegations

of fraud or other claims for which evidence was or could not be presented to the agency, extra

record evidence or discovery is more likely to be allowed. (See, e.g., Morgan, 231 Cal.App.3d

243, 261-262.)

E. Inverse Condemnation.

To bring an “as applied” regulatory taking claim, a landowner must timely challenge the

application of the regulation to the property by administrative mandamus. (Hensler v. City of

Glendale (1994) 8 Cal.4th 1, 7.) In Healing v. California Coastal Commission (1994) 22

Cal.App.4th 1158, 1170, the court held that review of the administrative record by petition for

administrative mandamus is not a substitute for a court trial of the regulatory takings issues

raised by the denial of a development permit. Citing Lucas v. South Carolina Coastal Council

(1992) 505 U.S. 1003, the court held the takings issue could not be resolved in the administrative

proceeding by relying on the validity of the Coastal Act.

“‘[W]e believe that a court is required to consider the nature as well as the

legitimacy of the state's interest together with the nature and extent of its impact

on the owner's use of his land.’ (Id. at p. 676.)

“To resolve this issue, evidence must be considered. ‘The legitimacy of the

public interest involved, how much it is furthered by the regulatory actions at

issue, the extent of the public benefit obtained or expected, and the degree that the

[owner’s] property rights and reasonable investment-backed expectations have

been impaired are all factors which lie at the heart of the takings inquiry. These

things typically cannot be assessed properly without a factual record.’ (McDougal

11

v. County of Imperial, supra, 942 F.2d at p. 680.)

“Accordingly, the mere fact that the regulation at issue has a legitimate

public purpose is not a sufficient reason to deny compensation to the property

owner whose land is rendered useless by the regulation. Instead, the agency’s

obligation to pay just compensation is to be determined by a balancing of the

competing interests articulated in Lucas and McDougal, a process which

necessarily requires a trial. As a practical matter, there is no way a landowner can

make the appropriate record at the administrative proceedings at which his permit

application is denied.” (Healing, 22 Cal.App.4th 1158, 1174-1175.)

The court also noted that the Coastal Commission has limited powers. (Id. at 1178.) By contrast,

local governments have broad police powers. (Candid Enterprises, Inc. v. Grossmont Union

High School (1985) 39 Cal.3d 878.)

Shortly after the court of appeal’s decision in Healing, the Supreme Court decided

Hensler, 8 Cal.4th 1. The Court held:

“The impact of a law or regulation on the owner’s right to use or develop

the property cannot be assessed until an administrative agency applies the

ordinance or regulation to the property and a final administrative decision has

been reached with regard to the availability of a variance or other means by which

to exempt the property from the challenged restriction. A final administrative

decision includes exhaustion of any available review mechanism. Utilization of

available avenues of administrative relief is necessary because the court ‘cannot

determine whether a regulation has gone “too far” unless it knows how far the

regulation goes.’” (Id. at 12.)

The Court reasoned:

“If the alleged taking is a ‘regulatory taking,’ i.e., one that results from the

application of zoning laws or regulations which limit development of real property,

however, the owner must afford the state the opportunity to rescind the ordinance

or regulation or to exempt the property from the allegedly invalid development

restriction once it has been judicially determined that the proposed application of

the ordinance to the property will constitute a compensable taking. The owner may

do so, where appropriate, by a facial challenge to the ordinance, but in most cases

must seek a variance if that relief is available and then exhaust other administrative

and judicial remedies. The facial challenge may be through an action for

declaratory relief (Agins v. City of Tiburon (1979) 24 Cal.3d 266, 273 [157 Cal.Rptr.

372, 598 P.2d 25]). The latter, an ‘as applied’ challenge to the development

restrictions imposed by the administrative agency, may be properly made in a

12

petition for writ of ‘administrative’ mandamus to review the final administrative

decision (Code Civ. Proc., § 1094.5) and that action may be joined with one for

inverse condemnation. A declaratory relief action also may be joined with an

action in inverse condemnation. (State of California v. Superior Court (1974) 12

Cal.3d 237, 251 [115 Cal.Rptr. 497, 524 P.2d 1281].) Damages for the ‘taking’ may be

sought in an administrative mandamus action (Code Civ. Proc., § 1095), or, if the

plaintiff seeks a jury trial, in the joined inverse condemnation action.” (Id. at 13-

14.)

The Court held that the trial court is able to resolve the taking claim in the mandate

proceedings.

“In some cases, all of the evidence necessary to establish a taking claim

may have been presented in the administrative proceeding. If it was not possible

for the landowner to present that evidence, it may be introduced in the mandate

proceeding. Subdivision (e) of Code of Civil Procedure section 1094.5 permits the

introduction of additional evidence that is relevant to a challenge to the

administrative action if the evidence ‘could not have been produced or ... was

improperly excluded at the hearing before’ the administrative agency. Thus, the

trial court is able to resolve the taking claim in the mandate proceeding.” (Id. at

15.)

While noting that in some cases the administrative agency is not competent to decide

whether its own actions constitute a taking (id. at 15-16) and the landowner may not be afforded

a full and fair opportunity to present evidence relevant to the taking issue (id. at 16), the Court

held:

“A judicial determination is available in the mandate proceeding, however,

if the administrative action is challenged on the basis that it is a compensable

taking, the hearing did permit full litigation of the facts relevant to the takings

issue, and any additional issues are litigated before the court. Because a taking of

property is alleged, the court must accord the owner de novo review of the

evidence before the agency in ruling on the taking claim.” (Ibid.)

It is therefore advisable in some cases to permit the landowner the opportunity to make

a record during the administrative process, including the swearing of witnesses and limited direct

and cross examination. The local agency may wish to adopt procedures for such proceedings

which are similar to personnel or revocation proceedings. As indicated in Hensler, if the court

decides the takings issue in the mandate proceeding, extra record evidence may be admitted. (Id.

at 15.)

13

In any event, it is important to insure that the administrative record demonstrates the

evidentiary basis for the decision including detailed findings based on substantial evidence and

the nexus for any mitigation. Environmental impact reports are helpful for documenting the basis

for the agency decision.

F. Other Claims (e.g., Declaratory Relief, Injunction).

Declaratory relief is the proper means to challenge the constitutionality or interpret a

regulation. (State v. Superior Court, 12 Cal.3d 237, 251.) A facial takings challenge to a

regulation may be made through an action for declaratory relief and may be joined with a

complaint for damages. (Hensler, 8 Cal.4th 1, 14-15)

Injunctive relief is a remedy not a cause of action. Frequently, a cause of action for

injunctive relief is joined with a mandate action; it is usually superfluous. Temporary provisional

relief may be appropriate if the agency threatens to change the status quo. Extra record evidence

may be admitted to show irreparable harm in a temporary restraining order proceeding.

3. Legal Issues.

A. Contents of the Record.6

The contents of the record depend on the type and origin of the mandate case. For

example, in Administrative Procedure Act (“APA”) cases, the record consists of the pleadings,

all notices and orders issued by the agency, any proposed decision by the administrative law

judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the

written evidence, and any other papers concerning the case. (Gov’t Code § 11523.) For non-

APA cases, the same basic contents should be provided. (California Administrative

Mandamus §6.6 at 152.)

6 Because the contents of the record in CEQA actions are so specific, they are addressed

separately in section C2.

A challenge to the agency decision predicated on a challenge to the sufficiency of the

evidence requires inclusion of the entire administrative record regardless of whether judicial

review is conducted under the substantial evidence test (i.e., administrative mandate) or the

independent judgment test (i.e., independent judgment test applied when fundamental right is

at issue). Under the independent judgment test, the court exercises independent judgment in

evaluating the evidence and finds the agency abused its discretion if the findings are not

14

supported by the weight of the evidence. (C.C.P. § 1094.5(c); Strumsky v. San Diego County

Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) The court cannot fulfill this task and

uphold the agency decision without the entire record. No statute specifies the contents that

constitute the entire record.

For quasi-adjudicatory decisions in which the court applies the substantial evidence test,

the court must determine if the findings are supported by substantial evidence “in light of the

whole record.” (C.C.P. § 1094.5(c).) This standard militates in favor of a comprehensive record

that is not defined by statute.7 In addition to the items identified above, the record ought to

include all staff reports, documents circulated publically or publically available, and documents

considered by the decision makers. Because of the statutory language, courts may be, and have

been, reluctant to uphold the agency’s decision without the entire record before it. (See, e.g.,

Protect Our Water, 110 Cal.App.4th 362.) Ostensibly, petitioner bears the burden to present a

record demonstrating the absence of substantial evidence. (See, Hothem v. City and County of

San Francisco (1986) 186 Cal.App.3d 702, 705; Foster v. Civil Serv. Comm’n (1983) 142

Cal.App.3d 444, 453.) As a practical matter, however, the court will not uphold the agency’s

decision if it decides the record lacks substantial evidence to support it. (See, Protect Our

Water, 110 Cal.App.4th 362.) The court may order a new hearing for the purpose of providing

an adequate record for judicial review. (See, Chavez v. Civil Service Comm’n (1978) 86

Cal.App.3d 324, 332; Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 127.) It thus behooves

the agency to err on the side of completeness.

For quasi-legislative decisions, the statutes provide no guidance for the contents of the

administrative record. Because a public hearing, even if held, is not required for such decisions,

the record can contain studies, reviews and reports prepared by staff for the decisionmakers that

were not made publically available or presented at the hearing. (See City of Santa Cruz, 76

Cal.App.3d 381, 391, 392.) For quasi-legislative decisions, the agency decision-makers need not

act “only on input received at the hearing.” (Id. at 388.)

B. Augmenting the Record.

7 A complete evidentiary record is unnecessary under limited circumstances such as a challenge

based solely on an issue of law which appears on the face of the decision or the agency lacked

jurisdiction over the subject matter. (California Administrative Mandamus §10.4 at 350.)

Evidence outside the administrative record is generally inadmissible to challenge the

validity of a local agency’s legislative or administrative decision, especially in CEQA cases.

(WSPA, 9 Cal.4th 559, 565; C.C.P. § 1094.5(e).) In WSPA, the Court explained:

15

“We conclude that the substantial evidence standard of review prescribed

by this statute is analogous to the substantial evidence standard of review applied

by appellate courts to evaluate the findings of fact made in trial courts.

Accordingly, just as appellate courts generally may not consider evidence not

contained in the trial record when reviewing such findings, courts generally may

not consider evidence not contained in the administrative record when reviewing

the substantiality of the evidence supporting a quasi-legislative administrative

decision under Public Resources Code section 21168.5.” (Id. at 565.)

There is an exception to the general rule where there is “relevant evidence that, in the

exercise of reasonable diligence, could not have been produced or that was improperly excluded

at the hearing.” (C.C.P. § 1094.5(e); WSPA, 9 Cal.4th 559, 578.) Evidence outside the record is

admissible in traditional mandamus proceedings that challenge or seek to compel a ministerial

act where the facts are in dispute. (WSPA, 9 Cal.4th 559, 576.) In such cases, there is generally

no administrative record because the agency has not held a hearing. If a petitioner can show

bias, fraud, corruption so that a fair trial was denied, the record may be augmented. (See,

Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93.) As

discussed in section 2E, evidence outside the record may be permitted in a mandate proceeding

involving a takings claim. (Hensler, 8 Cal.4th 1, 15.) Evidence outside the record is generally

admissible on issues other than the validity of the local agency’s decision. These issues

include:

· standing

· exhaustion of remedies

· indispensable party (real party in interest)

· TRO - injunction (irreparable harm)

· laches

· mootness

· attorney’s fees

C. Excluding Documents from the Record.

All documents pertinent to the litigation contained in agency files need not be included

in the administrative record. Privilege and other legal bases for excluding documents from

production or provision to the public operate to exclude them from an administrative record as

well.

Documents relevant for inclusion in an administrative record are subject to all privileges

applicable to agency communications, and can and should be excluded if privileged. (See, e.g.,

Evid. Code § 1040; Gov’t Code § 6254(k).) Depending on the type of action at issue, documents

16

may also be excluded on other bases as well. Other than privileges set forth in the Evidence

Code, what constitutes a privilege or legal basis for exclusion of documents from an

administrative record apparently is an issue of first impression.

Analogous law and public policy considerations provide guidance. For example,

exceptions to production requirements set forth in the Public Records Act (“PRA”) may be

instructive. Arguably, whether the document constitutes a “public record” can be a threshold

determination for the propriety of its inclusion in an administrative record. A public record “is

one made by a public officer in pursuance of a duty, the immediate purpose of which is to

disseminate information to the public, or to serve as a memorial of official transactions for public

reference....[i]t must have been made or retained ... for the purpose of preserving its informational

content for future reference.” (64 Ops. Cal. Atty Gen. 317, 326.) Hence, drafts, notes, or

interagency or intra-agency memoranda that are not retained in the ordinary course of business

(assuming the agency is unaware of pending litigation for which the documents might be

pertinent) may not necessarily constitute “official records” within the meaning of the PRA and

may be excluded from administrative records for ordinary and administrative mandamus. (See

Gov’t Code § 6254(a); but see, Citizens for a Better Environment v. California Dept. of Food

and Agriculture (1985) 171 Cal.App.3d 704, 714 [“If preliminary materials are not customarily

discarded or have not in fact been discarded as is customary they must be disclosed”].) This

exception should be made applicable to emails by formulation of email policies that provide, for

example, that emails are not a medium for permanent storage, are purged regularly pursuant to

an established schedule, and those intended to be kept in the ordinary course of business must

be printed in hard copy and/or saved in a disk file. Similarly, personal messages, internal

documents such as cover notes and distribution slips that facilitate transmission of documents

are not “official records” and may be excluded. Especially given the informal nature of email

exchanges; emails may include personal comments on project opponents and proponents that

the agency would not want publically disclosed.

The deliberative process privilege may afford another basis for excluding documents from

an administrative record, especially for challenges to quasi-legislative acts. (See generally,

Osher and Wild, “Deliberative Process Privilege Shields Agencies’ Deliberations,” Los Angeles

Daily Journal [August 20, 2002] p. 7.) If inclusion of documents would “expose an agency’s

decision making process in such a way as to discourage candid discussion within the agency

and thereby undermine the agency’s ability to perform its functions,” it should be argued that

such documents may properly be excluded from the administrative record. (See, Times Mirror

Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342; Marylander v. Superior Court (2000) 81

Cal.App.4th 1119 [Court enumerated factors determining applicability of deliberative privilege

including degree to which statute regulates disclosures the agency must make]; Rogers v.

Superior Court (1993) 19 Cal.App.4th 469, 477-479.) This privilege can apply to factual material

under certain circumstances. (See, e.g., California First Amendment Coalition v. Superior

Court (1998) 67 Cal.App.4th 159, 172.) The deliberative process privilege is not limited to

17

communications with elected officials but may also extend to other officials involved in the

decisionmaking process if exposure of the document to the public would undermine the

agency’s ability to perform its functions. (See, e.g., Trans Union LLC v. FTC (DDC 2001) 141

F.Supp.2d 62, 69-70 [“To the extent that predecisional materials, even if ‘factual’ in form, reflect

an agency’s preliminary positions or ruminations about how to exercise discretion on some

policy matter, they are protected.... ‘[T]he key questions ... [include] whether the disclosure of

materials would expose the agency’s decisionmaking process in such a way as to discourage

candid discussion within the agency and thereby undermine the agency’s ability to perform its

functions.’”]; North Dartmouth Properties, Inc. v. Dept. of Housing and Urban Development

(D. Mass. 1997) 984 F. Supp. 65, 69 [Post decision email protected under deliberative privilege

because it reiterated pre-decisional deliberations and reflected sender’s personal views,

opinions, and recommendations concerning the matter at issue]; Grine II v. Coombs (W.D. Pa.

1997) 1997 U.S. Dist. LEXIS 19578 at 3 [Deliberative privilege applies to predecisional document

that contains deliberative information “reflecting the ‘give and take’ of the deliberative process

and containing opinions, recommendations, or advice about agency policies”].8 This privilege

applies to lower level staff members and has been interpreted to protect from disclosure the

following:

· Advisory opinions, deliberations, and recommendations (Government Suppliers

Consolidating Services, Inc. v. Bayh (S.D. Ind.1990) 133 F.R.D. 531, 534);

· Confidential intra-agency and interagency memoranda on issues of law or policy

(Id. at 536);

· Drafts of final agency decisions (Natural Resources Defense Council v. Fox

(S.D.N.Y. 1998) 1998 U.S. Dist. LEXIS 4575; Remy, p. 622, 623);

· Opinions and recommendations of temporary consultants hired by an agency

based on special need (Harris v. City of Philadelphia (E.D. Pa. 1995) 1995 U.S.

Dist. LEXIS 7908).

CEQA’s broad language mandating documents to be included in an administrative record

(“all internal agency communications...related to the project or to compliance with” CEQA [Pub.

Res. Code § 21167.6(e)(10)]) should not eviscerate applicable legal principles calling for

protection of documents from disclosure. Remy specifically admonishes that this provision must

be harmonized with Evidence Code provisions regarding privilege, other provisions of section

21167.6(e), the PRA, and other applicable law. (Remy, p. 620.) In interpreting the PRA, the

Supreme Court expressly rejected an argument that the PRA or Brown Act was intended to

eliminate the applicability of privileges or other legal bases for withholding documents and

information. Any such communications implicating the attorney-client privilege should not be

8 These cases were decided under the federal Freedom of Information Act and their reasoning

may be persuasive, but they obviously are not binding on California courts.

18

included in the administrative record. (See, Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371;

Remy, pp. 620-622.)

Similarly, administrative drafts of environmental documents not publically disclosed need

not be included in the record. Section 21167.6(e)(1) requires inclusion of those documents

“which have been released for public review.” Moreover, such documents are usually altered

as a result of input from agency staff, consultants and counsel. A comparison of differences

between administrative drafts including draft findings and final documents would reveal the

agency’s deliberative process and its counsel’s advice contrary to the protections afforded by

those privileges. (Remy, p. 622; see also, BP Alaska Exploration, Inc. v. Superior Court (1988)

199 Cal.App.3d 1240, 1250 [Regarding work product protection]; C.C.P. § 2018(b) [Same].)

The Court in WSPA suggested that if the decisionmakers did not receive the documents

at issue, those documents are not “relevant” to the question of whether substantial evidence

supports the agency’s decision regardless of whether it is quasi-legislative or quasi-

adjudicatory. (WSPA, 9 Cal.4th at 569, 570, 573.) This position may undercut the agency’s ability

to provide substantial record evidence in support of the agency’s decision where staff

possessed such evidence that provides the basis for conclusions in a staff report. Remy,

nevertheless, argues that materials such as internal staff opinions or criticisms that are in agency

files but never presented to decisionmakers are equivalent to extra record evidence excludable

under WSPA. (Remy at 624.) This position appears to conflict with that provision of section

21167.6(e)(10) requiring inclusion of “[a]ny other written materials relevant to the respondent

public agency’s compliance with this division or to its decision on the merits of the project,

including ... all internal agency communications, including staff notes and memoranda related

to the project or to compliance with this division.”

Before section 21167.6(e) was enacted, administrative records were not required to

include information that constituted the basis for staff recommendation but was not publically

disclosed. (See, Building Code Action, 102 Cal.App.3d 577, 586 n. 4.) However, City of Santa

Cruz made clear that for quasi-legislative decisions, such materials may be included in the record

because the agency is presumed to have considered information in its files, especially studies

made or conducted at agency expense. (City of Santa Cruz, 76 Cal.App.3d 381, 391, 392; accord

Dominey v. Dept. of Personnel Administration (1988) 205 Cal.App.3d 729, 738 n. 6.)

Information contained in an EIR is frequently based on underlying studies and

information not included in that document or provided to agency decisionmakers. (Remy, pp.

625-626.) CEQA Guidelines state that such documents need not be included in the EIR.

(Guidelines § 15148.) Hence, CEQA and decisionmakers assumes that the EIR’s

recommendations and conclusions from staff and consultants is supported by evidence neither

presented to nor reviewed by the decisionmakers. Agency staff expertise and opinions

constitute substantial evidence. (See, Gentry v. City Murietta (1995) 36 Cal.App.4th 1359, 1380;

19

Browning-Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 866.) Nevertheless,

section 21167.6(e)(10) suggests that the administrative record must include scientific or technical

documentation on which staff opinions or recommendations are based (“copies of ...other

documents relied upon in any environmental document and ... included in the respondent public

agency’s files”). Based on this analysis, Remy concludes that internal agency communications

and documents contained in the files should be included in the administrative record when they

are relevant to the existence of substantial evidence that supports staff reports or

recommendations provided to decisionmakers orally or in writing. (Remy, p. 626.)

In the end, the attorney must exercise discretion about whether to include documents in

the record when grounds for exclusion exist. Depending on the basis for exclusion, the right to

exclude may be waived in as narrow a fashion as possible to allow for inclusion of documents

that support the agency decision. (See, e.g., Gov’t Code § 6254.5.)

4. Practical Considerations.

The ultimate objective of making a defensible administrative record is to win the lawsuit

in the trial court and on appeal. Generally, if it isn’t in the record, it doesn’t exist. In Protect Our

Water, 110 Cal.App.4th 362, the court chastised the attorneys for the petitioner, the respondent

and the county for failing to provide the court with an adequate record.

“The documents generated by the County are inadequate for review. It is

impossible to identify many of the documents as the County has failed to properly

label them, and some documents appear incomplete. In addition, in the confusion

of this record, it is often difficult to differentiate between documents and

attachments to those documents. We find it inconceivable that, given the scope

and magnitude of this project, the documents comprising the administrative record

are so defectively drafted. This responsibility fell squarely on the County. (See §

21081, subd. (a)(3); Guidelines, § 15091; see also § 21167.6, subd. (b)(2) [agency

charged with certifying accuracy of record of administrative proceedings prepared

by petitioner].)” (Id. at 372.)

This should be a lesson to agency lawyers to become involved in making sure the record

is complete during the administrative process. Often, the applicant’s PowerPoint and other

demonstrative evidence do not make it into the administrative record. It is advisable for local

agencies to promulgate guidelines for insuring that the record is complete and preserved. The

official record should be kept separate from drafts, notes and, of course, privileged materials.

In land use cases, photographs are useful for court proceedings and should be included in the

record. It is unlikely that the judge will be as familiar with the property as the decision-makers.

If there is a site visit, this should be documented with photographs, maps and perhaps a video.

20

For important cases where litigation is likely, it may be wise to have a court reporter

present because tape recordings, even videos, can malfunction and are difficult to transcribe.

The record should be reviewed and secured before the lawsuit is filed and staff should be

warned not to permit potential litigants and others to review the files. Public records requests

and the documents requested should be reviewed by the agency’s attorney. Frequently

handwritten, irrelevant notes expressing a staffer’s opinion or off-hand remarks become the

focus of the litigation. In Kawaoka v. City of Arroyo Grande (9th Cir. 1994) 17 F.3d 1227, cert.

denied, 513 U.S. 870, a remark attributed to a councilmember outside the hearing process became

the focus of a federal discrimination claim. While upholding the City’s general plan, the Court

stated:

“The strongest evidence of discriminatory intent consists of two

statements made by Doris Olsen, a member of the City Council, to Stephanie

Forrest, the Kawaokas’ real estate agent, and Cheryl Christner, Ms. Forrest’s

assistant. Forrest contends that when informed that the City’s designation of the

Kawaokas’ property had decreased its value, Olsen stated ‘Why should these

Japanese people make all that money?’ and ‘Why should these people make so

much money?’

“Furthermore, the fact that Olsen made two deplorable comments off-duty

does not mean that the City may be held liable for discrimination. A municipality

may only be held liable under § 1983 for a violation that stems from ‘official

municipal policy.’ Monell v. Department of Social Servs., 436 U.S. 658, 691, 98

S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).” (Id. at 1239.)

It is preferable for the agency attorney to be involved in preparation of the record. The

task should not be left to staff. Frequently, petitioners in CEQA cases will assert their right to

elect to prepare the record. (See, Pub. Res. Code § 21167.6(b)(2).) City attorneys should resist

this. Such records are usually incomplete and may be organized in a manner calculated to

influence the outcome of the case. If the real party in interest prepares the record, the petitioner

will likely object. Disputes over the record delay resolution of the case and can result in

sanctions. (Pub. Res. Code § 21167.6(d).)

Although a bulky record can be a burden on the court and litigants, since the decision

in County of Orange, 113 Cal.App.4th 1, it is not advisable to resist inclusion of arguably

irrelevant materials in the record. The format of the record may be determinative of the outcome

of the case. It must be well fastened together and easy to handle. A complete and accurate

index is essential. Whether chronological, topical or by categories, tabs are helpful to the court.

Electronic records may be useful in large complex cases, especially if the court is computer

literate.

21

Copies of key portions of the record that you want the court to actually read may be

included in a trial notebook. (See, Los Angeles Superior Court local rule 9.24(j).) Some courts,

such as Los Angeles, do not retain the administrative record. This becomes the responsibility

of the agency. Those courts that retain the record may damage or lose it. Some judges and

clerks write notes on the record. It is a good idea to keep an extra, clean copy of the record for

any appeal. This is also useful to insure that the court of appeal receives a copy of the record

early. Trial exhibits are not generally forwarded to the court of appeal until shortly before the

hearing. The appellate court will need the record to write its bench opinion.

5. Summary.

A proper administrative record is critical to successfully defending agency decisions

subject to judicial challenge. Whether the decision is quasi-legislative or quasi-adjudicatory

determines the proper scope and contents of the record, and the extent to which it may be

augmented by documents that were not part of the proceedings before the agency. With careful

attention to the decisionmaking process and statutory requirements, the agency attorney can

help create a defensible record that is sufficiently comprehensive to support the challenged

decision while preserving agency privileges.

PREPARING A DEFENSIBLE

ADMINISTRATIVE RECORD

Katherine E. StoneLisabeth D. RothmanState Bar Certified Ap

Overview

The Importance of the Administrative RecordPerspective - Local Agency (UsuallyRespondent)Types of Administrative Records

Traditional Mandamus (C.C.P. § 1085)

Administrative Mandamus (C.C.P. § 1094.5)

CEQAValidation Proceeding (C.C.P. § 860, et seq.)

Inverse CondemnationLegal IssuesPractical Considerations

The Importance of theAdministrative Record

The Administrative Proceeding is the TrialWrits in the Nature of AppealsScope of Judicial Review Generally Limited

Very Little Case LawThe Importance of the Administrative RecordIf It Isn’t in the Administrative Record, It Doesn’tExist(Protect Our Water v. County of Merced (2003) 110Cal.App.4th 362)

Also Important for Legislative Actions(Lucas v. South Carolina Coastal Council (1992) 505U.S. 1003)

Perspective

Local Agency – Respondents’ Perspective

Local Agency – Petitioner’s Perspective

APA Generally Not Applicable

Types of AdministrativeRecords

Typical case challenges EIR, legislativeact (e.g., specific plan) and adjudicatoryact (e.g., tentative map) and/may join aninverse condemnation claim.

Traditional Mandamus

C.C.P. § 1085

Legislative (e.g., challenges to generalplan, zoning, development agreement)

Ministerial (building permits, final maps)

Usually Limited to Administrative Record

Ministerial Extra Record EvidenceAdmissible

Administrative MandamusC.C.P. § 1094.5Adjudicatory Acts (e.g. , tract maps, variances,conditional use permits, coastal developmentpermits)Exclusive Remedy for Review of AdjudicatoryDecisions (State v. Superior Court (1974) 12 Cal.3d237, 249)

Usually Limited to Record of Proceedings Beforethe Local Agency

Statutory ExceptionDue Process Denial Fair Hearing Claims

No Jury Trial

CEQA CasesPub. Res. Code § 21167.6C.C.P. §§ 1094.5 and 1085 Treated the SameIf It Isn’t in the Record, It Doesn’t Exist(Protect Our Water v. County of Merced (2003) 110 Cal.App.4th362)

Potentially Very Broad Scope(County of Orange v. Superior Court (2003) 113 Cal.App.4th 1)

Contents(Pub. Res. Code § 21167.6(e))

Augmentation Very Limited(Western States Petroleum Association v. Superior Court (1995)9 Cal.4th 559)

CEQA Cases (Cont’d)

Anything That Touched the Project Can BeIncluded(County of Orange v. Superior Court (2003) 113Cal.App.4th 1)

Local Government Discretion over the ContentsProcedural, Not Evidentiary, Issue

CEQA Doesn’t Involve Due ProcessLocal Rules and Practices (e.g., Los AngelesSuperior Court)Certification

Inverse Condemnation(Regulatory Takings)

Landowners Need Not Exhaust AdministrativeRemedies(Healing v. California Coastal Commission (1994)22 Cal.App.4th 1158; cf., Hensler v. City ofGlendale (1994) 8 Cal.4th 1, 15-16)

Right to a TrialMake an Administrative Record AnywayCourt May Resolve Liability Issue in WritProceeding(Hensler v. City of Glendale (1994) 8 Cal.4th 1, 15)

Inverse Condemnation(Regulatory Takings) (cont’d)

Include Factual Basis for Conditions, DenialFindingsConflicts with General PlanNexus for MitigationEIRs Are Helpful

Leave Open the Possibility of ReasonableAlternativesAsk Developer to Document Claims that City’sPosition Is UnreasonableConsider Adopting Procedures for anEvidentiary Hearing

Distinction Between DeclaratoryRelief Mandamus

Generally Mandate Challenges aGovernment ActionDeclaratory Relief Seeks to Invalidate orInterpret a Law (e.g., an ordinance)Injunctive Relief a Remedy - Not a Causeof Action

Findings

Must be in the Record(Protect Our Water v. County of Merced (2003) 110Cal.App.4th 362; Pacifica Corp. v. City ofCamarillo (1983) 149 Cal.App.3d 168)

C.C.P. § 1085 (not required)C.C.P. § 1094.5 (essential)

Tentative or Parcel Maps(Gov’t Code § 66474)Variances

CEQAPub. Res. Code §§ 21002, 21081

Findings (cont’d)

General Plan ConsistencyNexus(Dolan v. City of Tigard (1994) 512 U.S. 374)

Other Statutory Findings (e.g., affordablehousing)

Gov’t Code § 65302.8Gov’t Code § 65863.6Gov’t Code § 65589.5

Legal Issues

Contents of the RecordCan the Agency Exclude:

Irrelevant Documents?Attorney Client-work Product Documents?E-mails?Handwritten Notes?Consultant’s Files?Screen Check EIR?Drafts?Other?

Legal Issues (cont’d)

Augmenting the Administrative RecordCEQA(Western States Petroleum Association v.Superior Court (1995) 9 Cal.4th 559)C.C.P. § 1094.5(e)C.C.P. § 1085Ministerial ActsBias - Fair TrialTakingsStanding

Legal Issues (cont’d)

Augmenting the Administrative RecordIndispensable Party (real party in interest)Exhaustion of RemediesTRO - Injunction (irreparable harm)LachesMootnessAttorney’s Fees

Legal Issues (cont’d)Can the Agency Insist on Preparing theAdministrative Record?

CEQAC.C.P. §§ 1094.5 & 1085

Public Records Act Requests During theAdministrative ProcessDoes Due Process Require a VerbatimTranscript for Adjudicatory Decisions?

If a Fundamental Vested Right Is Involved?(Aluisi v. County of Fresno (1959) 159Cal.App.2d 823)APA Requires R.T.

Practical Considerations

Making Sure the Record is CompleteDuring the Administrative Process

Demonstrative EvidenceReporter’s Transcript versusTapes/VideosPhotographs

Securing the Record Before the Lawsuit IsFiledBeware of Public Records Act Requests

Practical Considerations(cont’d)

Who Should Prepare the Record?PetitionerCity ClerkPlanning DepartmentCity Attorney’s OfficeReal Party in Interest’s Attorneys and Paralegals

FormatMake it Easy for the Judge and Law Clerks toReview and HandleElectronic

Practical Considerations(cont’d)

Trial Notebook

Keep a Complete Clean Copy of theRecord for Appeal

Get the Record to the Court of AppealEarly

This is the end of this presentation. Click anywhere to return to the main menu.