Yesterday's post noted that an administrative decision had not been listed as a "precedent decision".  Today's post will delve into the role of precedential and nonprecedential agency decisions.

The California Government Code allows state agencies to "designate as a precedent decision a decision or part of a decision that contains a significant legal or policy determination of general application that is likely to recur".  Cal. Gov't Code § 11425.60(b).  There are several consequences to an agency making this designation.  First, the agency is required maintain an index of significant legal and policy determinations made in precedent decisions. and to make this index available by subscription.  Cal. Gov't Code § 11425.60(c).  Second, the agency's designation is not subject to the notice, comment and other requirements that apply to rulemaking under the California Administrative Procedure Act.  Cal. Gov't Code § 11425.60(b).  Third, the agency's decision to designate is not subject to judicial review.  Id.  Thus, the designation of an administrative decision (or part of a decision) as precedent allows an agency to make rules without incurring all the bother and fuss associated with rulemaking.  Of course, this effectively deprives the public of the opportunity to provide input.

Agency decisions that are not designated as "precedent decisions" may not be expressly relied upon as precedent.  Cal. Gov't Code § 11425.60(a).  This does not mean, however, that they can not be relied upon, however.  As explained by the Fifth District Court of Appeal:

We note at the outset that we disagree with Malaga's contention that express reliance on a nonprecedential decision is not required. The clear language of the statute dictates that no decision may be “expressly relied upon as precedent” unless designated as such, thus confirming express reliance is required. Such a rule makes sense, as the agency should be permitted, as all courts are, to review its nonprecedential decisions to gain a greater understanding of how the law has been viewed and issues resolved in the past. It is only when treating those decisions as binding that the need for designation as precedential arises.

Malaga Cnty. Water Dist. v. State Water Res. Control Bd., 58 Cal. App. 5th 447, 475, 272 Cal. Rptr. 3d 548, 566–67 (2020).   This interpretation seems to provide agencies with an "easy out".  An agency can effectively rely on a prior decision so long as it takes care to avoid saying that it is relying.  In other words, nonprecedential decisions may be precedents sub silentio.