Notice, Comment, and Exhaustion

In recent years, CJLF has been involved in a number of civil cases, some of which involve administrative law.* In administrative law, there is generally a requirement to exhaust administrative remedies before turning to the courts. There are also requirements in various laws for hearings and public comment before adopting certain measures.

Is a party who does not comment on a proposal forever banned from filing a lawsuit challenging its legality? We have been hit with that argument a couple of times. For one particular kind of hearing/comment law, the California Supreme Court has said no. The case of Hill RHF Housing Partners, L.P. v. City of Los Angeles, S263734 involves business improvement districts. “The opportunity to comment on a proposed BID does not involve the sort of ‘clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties’ [citation]  that has allowed us to infer an exhaustion requirement in other contexts.” I think that is correct.

Opportunity to comment is not like an administrative decision to decide an applicant’s claim. Agencies which receive comments are sometimes free to just ignore them. Even when a response is required, it does not take a lot to meet that requirement. Comment processes are often little more than going through the motions.

Another reason, not present in this case, why public comment processes should generally not cut off rights is that the “notice” part of the process often fails to reach a great many people affected by the change.

Hopefully this decision will lead to the demise of “but they didn’t comment” defenses in administrative matters in the future.

* And I thought when I took this job I could forget all about civil litigation, which I never liked. Oh, well, it worked for the first 25 years.

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