We all know that regulations (and legislation, statutes and ordinances) are pervasive in California from state, federal and local government. To a certain extent all regulation sets compliance requirements, limitations, and standards. With respect to all and each proposed and actual regulation, and legislation, statute and ordinance, it is appropriate and indeed legally prudent and necessary to ask whether the proposed or actual regulation, etc., will be or is legally valid. Of course, each proposed and actual regulation, and legislation, statute and ordinance must be evaluated on a case-by-case basis. However, for example, the following are some of the arguments that might be made against the validity of an administrative agency regulation and provisions therein (see also separate Tate materials discussing legal grounds to invalidate a law, statute, legislation or ordinance):

Ultra Vires (the regulation exceeds the agency’s statutory authority) – the regulation goes beyond the scope of the enabling statute that created the agency, exceeding the powers explicitly granted to it by the legislature or other authority that created the agency. Also consider that the agency interpreted the agency authority or creating statute too broadly, creating rules not directly related to the statute’s or the agency’s intended purpose; and that the agency authority or creating statute might be unlawfully or too broad, vague, ambiguous, etc.

Procedural Defects – failure to properly follow the federal APA’s or California APA’s rulemaking process, including inadequate notice, public comment period, or analysis of potential impacts. 

Arbitrary and Capricious – the regulation is based on unreasonable or illogical reasoning, lacking a rational connection to the facts. Also consider lack of substantial evidence in the administrative record to support the regulation. Consider that the regulation is not reasonably necessary to achieve the stated purpose of the statute (e.g., what is the stated purpose of the statute, and how does the regulation achieve that stated purpose?).

Unnecessary Burden – the regulation imposes undue burdens on regulated parties without a clear benefit or justification in support of the stated purpose of the statute. 

Discriminatory Impact – the regulation unfairly targets a specific group or class of protected persons.

Conflict with Existing Law – the regulation conflicts with or contradicts existing state statutes or other regulations; the agency’s interpretation of the law is inconsistent with established precedent.

Conflict of Interest; Bias – the regulation, or its provisions or a significant provision, or its promotion or enactment were influenced by impermissible or misleading conflict of interest, bias or persuasion.

Administrative Review – first attempt to challenge the regulation within the agency itself, often through a petition for reconsideration or an internal appeal process. 

Judicial Review – if the agency does not address concerns, file a lawsuit in court seeking a writ of mandate to overturn the regulation.

Standard of Review – courts have generally given deference to agency interpretations of law, but will scrutinize regulations that appear to be arbitrary, capricious, or beyond the agency’s authority. This is a developing area – traditional deference to the agency may not apply or may not apply as strongly as in the past. Also consider burden of proof.

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, will, fiduciary and elder abuse disputes, litigation, trials and law – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, challenging and contentious administrations, and personalities, people and relationships, mental and physical health, limitations and capacity, undue influence and fraud; and and mediator services.

Business litigation and internal business and co-ownership disputes, litigation, trials and law, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, legal risk management, and personalities, people and relationships; and mediator services.

Governance, law, legal risk management processes, compliance and success, audits and auditing, internal controls, executive officers, boards, directors, audit and governance committees, investigations, publicity rights, AI, defamation and First Amendment, legislation, statutes and laws, regulations, and headline news, and issue, people and relationship effective meetings, discussions and deliberations, debates and debating, communications, and wording and use of words.

Real property disputes, litigation, trials and law – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong, and mediator services.

Mediator and mediator and dispute resolution services (evaluative and facilitative).

• Trust, estate, probate, conservatorship, elder and dependent abuse, etc.

• Business, breach of contract/commercial, owner, shareholder, investor, etc.

• D&O, board, audit and governance committee, accountant and CPA related.

• Other: workplace and employment, environmental, trade secret.

• Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, evidence, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.