Section 1190.5 - Hearing Process and Form of DecisionNotwithstanding any other provision of these regulations, mandate redetermination process hearings and decisions shall be subject to article 7 of these regulations. There shall be a two-step hearing process for requests to adopt a new test claim decision as follows:
(a) The First Hearing: (1) The first hearing shall be limited to the issue of whether the requester has made an adequate showing that identifies a subsequent change in law as defined by Government Code section 17570, material to the prior test claim decision, which may modify the state's liability pursuant to article XIII B, section 6(a) of the California Constitution. The Commission shall find that the requester has made an adequate showing if it finds that the request, when considered in light of all of the written comments and supporting documentation in the record of this request, has a substantial possibility of prevailing at the second hearing.(2) At least eight weeks before the hearing or at another time required by the executive director or stipulated to by the parties, Commission staff shall prepare a draft proposed decision and issue it to the parties, interested parties, and any person who requests a copy, and shall post it on the Commission's website. A request for mandate redetermination is set for the first hearing when Commission staff issues its draft proposed decision. A written notice of the date, time, and place of the first hearing shall be served on everyone on the mailing list described in section 1181.4 of these regulations and posted on the Commission's website.(3) Written comments concerning the draft proposed decision may be filed with the Commission. Written comments shall be certified, filed, and served in accordance with section 1181.3 of these regulations, by the date determined and noticed by the executive director. A three-week period for comments shall be given, subject to the executive director's authority to expedite all matters pursuant to Government Code section 17530. If representations of fact are made, they shall be supported by documentary or testimonial evidence in accordance with section 1187.5 of these regulations. All written comments timely filed shall be reviewed by Commission staff and may be incorporated into the proposed decision of the request to adopt a new test claim decision. (A) It is the Commission's policy to discourage the introduction of late comments, exhibits, or other evidence filed after the three-week comment period described in subdivision (a)(3) of this section. The Commission need not rely on, and staff need not respond to, late comments, exhibits, or other evidence filed in response to a draft proposed decision.(4) Before the first hearing on the request for mandate redetermination, Commission staff shall prepare a proposed decision limited to the issue of whether the requester has made a showing that identifies a subsequent change in law, material to the prior test claim decision, which may modify the state's liability pursuant to article XIII B, section 6(a) of the California Constitution. This proposed decision shall consider the request, written comment, rebuttals and supporting documentation filed by the parties and interested parties. The proposed decision for the first hearing shall find that the requester has made an adequate showing if staff finds that the request, when considered in light of all of the written comments and supporting documentation in the record of this request, has a substantial possibility of prevailing at the second hearing.(5) If, at the first hearing, the Commission finds that:(A) The requester has not made an adequate showing, when considered in light of all of the written comments, rebuttals and supporting documentation in the record and testimony at the hearing, that the request for mandate redetermination has a substantial possibility of prevailing at the second hearing, the Commission shall issue a decision denying the request for mandate redetermination.(B) The requester has made an adequate showing, when considered in light of all of the written comments, rebuttals, and supporting documentation in the record and testimony at the hearing, the Commission shall issue a decision finding that an adequate showing has been made and setting the second hearing on whether the Commission shall adopt a new test claim decision to supersede the previously adopted test claim decision.(6) Everyone on the mailing list described in section 1181.4 of these regulations shall be issued written notice that the Commission's decision has been posted on the Commission's website and, if applicable, that the date, time, and place of the second hearing have also been posted on the Commission's website.(b) The Second Hearing: (1) If the Commission proceeds to the second hearing, it shall consider whether the state's liability pursuant to article XIII B, section 6(a) of the California Constitution has been modified based on the subsequent change in law alleged by the requester, thus requiring adoption of a new test claim decision to supersede the previously adopted test claim decision. If the Commission finds that the state's liability pursuant to article XIII B, section 6(a) of the California Constitution has been modified based on the subsequent change in law alleged by the requester, it shall adopt a new decision that reflects the modified liability of the state.(2) Before the second hearing, Commission staff shall prepare a proposed decision. At least eight weeks before the hearing or at another time required by the executive director or stipulated to by the parties, Commission staff shall prepare a draft proposed decision and issue it to everyone on the mailing list described in section 1181.4 of these regulations and post it on the Commission's website. The proposed decision shall consider the request, and any written comments and rebuttals and supporting documentation filed.(3) Any party or interested party may file written comments concerning the draft proposed decision with the Commission. Written comments shall be certified, filed, and served in accordance with section 1181.3 of these regulations, by the date determined and noticed by the executive director. A three-week period for comments shall be given, subject to the executive director's authority to expedite all matters pursuant to Government Code section 17530. If representations of fact are made, they shall be supported by documentary or testimonial evidence in accordance with section 1187.5 of these regulations. All written comments timely filed shall be reviewed by Commission staff and may be incorporated into the proposed decision. (A) It is the Commission's policy to discourage the introduction of late comments, exhibits, or other evidence filed after the three-week comment period described in subdivision (b)(3) of this section. The Commission need not rely on, and staff need not respond to, late comments, exhibits, or other evidence filed in response to a draft proposed decision.(4) If, at the second hearing, the Commission finds that the state's liability pursuant to article XIII B, section 6(a) of the California Constitution: (A) has not been modified based on a subsequent change in law as defined by Government Code section 17570 (a)(2), the Commission shall issue a decision denying the request.(B) has been modified based on a subsequent change in law, as defined by Government Code section 17570 (a)(2) the Commission shall adopt a new decision to supersede the prior decision. The new decision shall be prepared in writing, based on the record, and shall include a statement of reasons for the decision, findings, and conclusions.(5) Everyone on the mailing list described in section 1181.4 of these regulations shall be issued written notice that a copy of the decision has been posted on the Commission's website.(6) After a decision or proposed decision has been served or posted on the Commission's website, it shall not be changed except to correct clerical errors, in which case a corrected decision or proposed decision shall be prepared and posted on the Commission's website. Everyone on the mailing list described in section 1181.4 of these regulations shall be issued written notice that a copy of the revised decision has been posted on the Commission's website.(7) If a new decision is adopted that finds that the State's liability under article XIII B, section 6(a) of the California Constitution has been modified, the amount and method of reimbursement shall be determined in accordance with article 3 of these regulations.Cal. Code Regs. Tit. 2, § 1190.5
1. New section filed 5-19-2014; operative 7-1-2014 pursuant to Government Code section 11343.4(a)(3). Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527 (Register 2014, No. 21).
2. Amendment subsections (a)(2), (a)(3) and (b)(7) and amendment of NOTE filed 9-24-2015; operative 10-1-2015 pursuant to Government Code section 11343.4(b)(3). Exempt from OAL review and submitted to OAL for filing and printing only pursuant to Government Code section 17527(g) (Register 2015, No. 39).
3. Amendment of subsections (a)(1), (a)(5)(A) and (b)(7) filed 9-13-2016; operative 10-1-2016 pursuant to Government Code section 17527(g) (Register 2016, No. 38).
4. Amendment of subsections (a)(3) and (b)(3) filed 2-27-2018; operative 4-1-2018 pursuant to Government Code section 11343.4(a). Exempt from OAL review and submitted to OAL for filing and printing only pursuant to Government Code section 17527(g) (Register 2018, No. 9).
5. Editorial correction of HISTORY 4 (Register 2018, No. 18).
6. Amendment of subsections (a)(1)-(a)(3)(A), (a)(5)(A)-(6), (b)(2)-(b)(3)(A), (b)(4)(A) and (b)(5)-(6) filed 1-23-2020; operative 4-1-2020 (Register 2020, No. 4). Note: Authority cited: Sections 17527(g), 17553(a) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
1. New section filed 5-19-2014; operative 7/1/2014 pursuant to Government Code section 11343.4(a)(3). Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527 (Register 2014, No. 21).
2. Amendment subsections (a)(2), (a)(3) and (b)(7) and amendment of Note filed 9-24-2015; operative 10/1/2015 pursuant to Government Code section 11343.4(b)(3). Exempt from OAL review and submitted to OAL for filing and printing only pursuant to Government Code section 17527(g) (Register 2015, No. 39).
3. Amendment of subsections (a)(1), (a)(5)(A) and (b)(7) filed 9-13-2016; operative 10/1/2016 pursuant to Government Code section 17527(g) (Register 2016, No. 38).
4. Amendment of subsections (a)(3) and (b)(3) filed 2-27-2018; operative 4/1/2018 pursuant to Government Code section 11343.4(a). Exempt from OAL review and submitted to OAL for for filing and printing only pursuant to Government Code section 17527(g) (Register 2018, No. 9).
5. Editorial correction of History 4 (Register 2018, No. 18).
6. Amendment of subsections (a)(1)-(a)(3)(A), (a)(5)(A)-(6), (b)(2)-(b)(3)(A), (b)(4)(A) and (b)(5)-(6) filed 1-23-2020; operative 4/1/2020 (Register 2020, No. 4).