Cal. Code Regs. Tit. 2, § 18361.10 - Administratively Adjudicated Enforcement Decisions as Precedent
(a) This regulation applies to
administratively adjudicated enforcement decisions, not resulting from a
default judgment, pursuant to Government Code section 11425.60, and which issue
as proposed decisions after the adoption of this regulation. The Commission may
designate as a precedent decision part or all of a decision that contains a
significant legal or policy determination of general application that is likely
to recur. The Commission may also overrule its prior precedent designations.
Such a designation or overruling thereof may be made upon the Commission's own
motion, or at the request of any person.
(b) The Commission shall maintain an index of
significant legal and policy determinations contained in precedent decisions.
(1) The index shall be updated at least
annually, unless no new precedent decisions were designated or overruled that
year.
(2) The index shall be made
available to the public by subscription and on its website.
(3) The availability of the index shall be
publicized annually in the California Regulatory Notice
Register.
(c) In
determining whether all or part of a decision should be designated or overruled
as a precedent decision, the Commission may consider whether the decision:
(1) Addresses a legal or factual issue of
general public interest;
(2)
Resolves a conflict in the law;
(3)
Provides an overview of existing law or policy;
(4) Clarifies existing law or
policy;
(5) Establishes a new rule
of law or policy; or
(6) Would be
more appropriately addressed by regulatory amendment, the advice process, or
the opinion process.
(d)
At the Commission's meeting at which a proposed decision is considered for
adoption on the merits, the Commission may make a tentative ruling regarding
whether all or part of the proposed decision should be deemed precedent, and
whether all or part of a previous related precedent should be overruled. In
their briefs on the merits of a proposed decision, the parties to the action
may include argument regarding precedent and overruling. Any tentative ruling
issued shall be acted upon by the Commission within 120 days after a decision
on the merits becomes final. A tentative ruling is not final and shall have no
precedential effect until it is separately acted upon. For purposes of this
regulation, and with reference to 2 Cal. Code Regs. section
18361.9(c), a
decision becomes "final" when the Commission has made a decision on the merits
and, either the time to file a petition for reconsideration has expired, or a
petition for reconsideration has been granted or denied and the reconsideration
process has concluded.
(e) After a
decision on the merits is final, any person may submit a request, in the form
of a concise written brief stating the reasons for the request and pursuant to
this regulation, that all or part of such a decision be deemed precedent, not
be deemed precedent, or that all or part of a previous related precedent be
overruled. Requests regarding precedent shall be delivered to the Executive
Director no later than 30 days after a decision on the merits is final. Within
14 days after a request is submitted, the person making the request shall be
notified in writing of the Executive Director's decision to grant or deny the
request.
(f) The grant or denial of
a request by the Executive Director shall be based upon one or more of the
following criteria:
(1) The timeliness of the
request;
(2) Whether the request is
clear and unambiguous; and
(3) The
factors contained in subdivisions (c)(1) through (c)(6).
(g) If a request is granted, the Executive
Director shall deliver copies of the request pursuant to subdivision (h) of
this regulation. If the request is denied, the Executive Director shall inform
the Commission of the denial, state the reason for the denial and advise the
requestor of the requestor's right to appeal the denial to the Commission. Any
member of the Commission, or person who has submitted a request that was
denied, may ask the Commission to review a denied request at the next meeting
of the Commission following the issuance of a denial. If a majority of the
Commission approves the granting of a request, the denial shall be rescinded,
the requestor shall be notified in writing that the request is granted, and the
Executive Director shall deliver copies of the request pursuant to subdivision
(h) of this regulation.
(h) The
Executive Director will deliver all granted requests to the Commissioners, the
Chief of the Enforcement Division, and parties to the decision, within seven
days of the request having been granted.
(i) Within 60 days of delivery of a granted
request by the Executive Director, the Commission shall decide which part or
parts, if any, of the final decision will be designated as precedent and what
portions, if any, of previous precedent will be overruled.
(j) Notwithstanding subdivisions (e) through
(i) of this regulation, a Commissioner may request that all or part of a final
decision be deemed precedent, not be deemed precedent, or that the Commission's
designation of all or part of a final decision as precedent be overruled, by
formal motion and approval by a majority of the Commission.
(k) The designation or overruling of all or
part of a decision as precedent is not rulemaking. The Commission's designation
of all or part of a decision, or the lack of such designation, as precedent is
not subject to judicial review.
Notes
Note: Authority cited: Section 83112, Government Code. Reference: Sections 83111 and 83116, Government Code.
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