Metropolitan News-Enterprise


Monday, June 19, 2017


Page 1


Court of Appeal Says:

Board’s Tie Vote Did Not Constitute Non-Decision

First District Says Trial Court’s Writ Review Is Only Precluded Where Administrative Review Panel Is Required to Make Independent Findings and Is Precluded by Even Split From Doing So


By a MetNews Staff Writer


The Court of Appeal has directed a superior court to take action on an administrative writ petition which it previously spurned, rejecting the notion that that a hearing board’s 2-2 decision, which resulted in leaving a challenged permit in place, was tantamount to taking no action and that the court therefore had nothing to review.

The board’s response to the challenge, the appeals court held, was a denial, not non-action.

It noted that “tie votes mean different things in different contexts,” and focused on the fact the decision of the board in question was not rendered non-reviewable by virtue of an unfulfilled duty to failure to make an independent findings of facts, having no such duty imposed on it.

The First District Div. One acted in a case in which an environmental group, Friends of Outlet Creek, had asked the Mendocino County Air Quality Management District’s Hearing Board to revoke a construction permit, known as an “authority to construct” or “ATC,” issued by the district on Nov. 17, 2015. With the recusal of one of the five members of the board—because he was a former employee of the permit-holder, Grist Creek Aggregates, LLC—there was an even split among the remaining four.

When Friends of Outlet Creek filed a writ of administrative mandamus to contest the board’s non-revocation, then-Mendocino Superior Court Judge Richard Henderson (now retired) sustained the board’s demurrer, with leave to amend.

Trial Court’s Decision

Henderson, a former district attorney of the county, opined:

“The appointment of the fifth Hearing Board member and the availability of an alternate member for each primary Board member will almost certainly guarantee the ability of the Hearing Board to take effective action on the appeal if the matter is returned to the Board for consideration and decision.”

However, the environmental group, declaring that it had ascertained that the board intended to take no further action, filed a petition for a writ of mandate in the Court of Appeal, which on April 6 was granted, in an opinion which Div. One chose not to certify for publication.

It declared in its opinion that “[t]o prevent further delays in the superior court proceedings, this decision shall be final as to this court five court days after its filing.”

But it then had second thoughts about its decision not to order publication, and on April 25 made a request to the California Supreme Court to direct the reporter of decisions to publish its opinion. The high court on Wednesday obliged, and the opinion was posted on the Judicial Council website on Thursday afternoon.

Writ Review Available

In that opinion, Justice James M. Humes declared that “the tie vote meant that the Hearing Board effectively allowed the November ATC to stand, and the outcome of not setting aside the November ATC may be reviewed by way of a writ petition in the trial court.”

Humes found no significance in the fact that leave to amend had been granted, and no amending of the petition occurred. He wrote:

“Yet given the court’s conclusion that the Hearing Board’s tie vote means Friends is unable to state a cause of action, it is unclear how the petition possibly could be amended to state a valid cause.  The trial court also noted that the appointment of a fifth member to the Hearing Board “will almost certainly guarantee the ability of the Hearing Board to take effective action on the appeal if the matter is returned to the Board” (italics added), but the court did not actually order that the matter be remanded to the Hearing Board for further action. It is thus unclear how Friends, or any of the parties, could comply with the court’s demurrer order.”

Case Was Inapposite

Humes said that Henderson relied on Lopez v. Imperial County Sheriff’s Office (2008) 165 Cal.App.4th 1 “for the broad proposition that ‘a tie vote of an administrative agency results in no action.’ ” That reliance, Humes declared, “is based on an oversimplification.”

In Lopez, he noted, a tie vote resulted in a remand because it was determined that one member of a board improperly recused himself. That circumstance, he said. did not exist in the case at hand.

“[W]hereas it was appropriate in Lopez to remand to the hearing board to take action it was required to take, there is no analogous reason to remand here,” the jurist wrote.

Reviewing other cases relied upon by Henderson, he said that none of them stands “for the proposition that the results of those tie votes were not subject to judicial review.”

Hume drew attention in a footnote to the California Supreme Court’s decision in Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197 where, he said, the high court stated “without analysis that State Board of Education’s tie vote amounted to affirmation of county board’s decision.” He related that he had placed reliance on reasoning in the Court of Appeal’s opinion in that case, which was automatically decertified upon the granting of review.

The footnote cites a 1994 case for the proposition that analysis in an unpublished decision may be considered, and a 2009 opinion which refers to an unpublished decision and bemoans: “Its reasoning is impeccable. Too bad we cannot cite it.”

(Under California Rules of Court, rule 8.1115, as amended effective last July 1, where review is granted, a published Court of Appeal is not depublished, and after the Supreme Court issues its opinion, the Court of Appeal opinion “is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”)

In the Court of Appeal’s decision in Today’s Fresh Start, rendered July 12, 2011, by Div. One of this district’s Court of Appeal, then-Justice Earl Johnson Jr., now retired, said:

“In the context of a judicial appeal from the decision of a lower court, a tie vote leaves the lower court decision intact….In the context of an administrative appeal, however, a tie may not have the same effect.”

Where a tie vote results in the lack of requisite findings, he said, review is barred, but not where independent factual findings by a reviewing board are not mandated.

Hume wrote:

“True, the Hearing Board did not make any written factual findings, so it is difficult to know how the trial court’s review of Board proceedings will unfold.”

But, he noted, “the gravamen of Friends’ petition is a challenge to the district’s to the November ATC,” adding that “we have no trouble concluding that the tie vote does not hinder a review of that approval.”

The case is Grist Creek Aggregates, LLC v Superior Court, 17 S.O.S. 3094.


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