Filed 5/9/16

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT
GERAWAN FARMING, INC. , Plaintiff and Appellant,

v.
AGRICULTURAL LABOR RELATIONS BOARD et al. , Defendant s and Re spondents

. F069896 (Super. Ct. No. 13CECG03374)

LUPE GARCIA, Intervener and Appellant,

v.
AGRICULTURAL LABOR RELATIONS BOARD et al. , Defendant and Respondents

. F070287 (Super. Ct. No. 13CECG03374)



### OPINION

APPEAL from a j udgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

* Pursuant to Califo rnia Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publica tion with the exception of part s IV., V. and VI.2

.

Georgeson and Belardinelli, C. Russell Georgeson; Irell & Manella, David A. Schwarz, Bruce A. Wessel and Josh Geller for Plaintiff and Appellant. Scott & Cyan Banister First Amendm ent Clinic, UCLA School of Law, Eugene Volokh for The Reporters Committee for Freedom of the Press, The First Amendment Coalition, and The California Newspaper Publishers‘ Association as Amici Curiae on behalf of Plaintiff and Appellant. Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for Defendants and Respondents. Walter & Wilhelm Law Group and Paul J. Bauer for Intervener and Appellant.

- ooOoo

Pursuant t o Labor Code section 1164 et seq., if an agricultural employer and a union certified to represent the agricultural employees of that employer have failed to reach an initial collective bargaining agreement (CBA), the Agricultural Labor Relations Board (the Board) may, if requested by one of the parties and certain statutory conditions are met, order them to undergo a binding process referred to in the statute as ―mandatory mediation and conciliation‖ (MMC). 1 (§ 1164, subd. (a).) In the MMC process, after an initial 30

- day period of voluntary mediation is exhausted, a decision

- maker (the mediator) takes evidence and hears argument from the parties on all disputed issues (the ―on the record‖ phase of the MMC process) and then submits a ―report‖ to the Board stating the mediator‘s findings on what he or she believes the terms of the CBA should be. The grounds for the mediator‘s determinations must be stated in the report and supported by the factual record. (§ 1164, subd. (d).) When the report becomes the f inal

1 Unless otherwise indicated, all further statutory references are to the Labor Code. Section 1164 et seq. is often ref erred to herein as the MMC statute. The MMC statute is one chapter (i.e., ch. 6.5) of division 2, part 3.5, of the Labor Code, a comprehensive statutory framework entitled the Alatorre

- Zenovich

- Dunlap

- Berman Agricultural Labor Relations Act of 1975 ( Lab. Code, § 1140 et seq.; the ALRA).3

.

order of the Board, it establishes the terms of an imposed CBA to which the parties are bound. (§ 1164.3, subds. (a)

– (e).) In this case, Lupe Garcia (Garcia), an employee of agricultural employer, Gerawan Farming, Inc. (Gerawan), requested the Board ‘s permission to attend and peaceably observe the MMC process that had been ordered between Gerawan and United Farm Workers (UFW). Specifically, Garcia wished to observe the on

- the

- record phase of the MMC process, where evidence and argument would be pres ented by the parties to the mediator on all disputed issues. In his request to the Board, Garcia argued that he and other members of the public had a constitutional right of access to the on

- the

- record portion of the MMC process. The Board rejected Garci a‘s request and proceeded to issue a broad policy decision that members of the public have no right to attend MMC proceedings. (See Gerawan Farming, Inc. v. United Farm Workers of America (Aug. 21, 2013) 39 ALRB No. 13.) 2 In response to the Board‘s no

- pu blic

- access ruling, Gerawan filed a declaratory relief action in the trial court, seeking a judicial declaration that the Board‘s ruling violated a right of public access protected un der both the federal and state C onstitutions.
Garcia intervened in the s ame action and filed a similar pleading in the form of a complaint

- in

- intervention. The Board demurred to both complaints on the ground that the trial court lacked jurisdiction because section 1164.9 limited all judicial review of the Board‘s rulings in s uch cases to the Court of Appeal or Supreme Court. The trial court agreed with the Board and sustained the demurrers without leave to amend. Gerawan and Garcia have separately appealed from the resulting judgments 3 of dismissal, arguing that (1 ) section 1164.9 did not preclude the trial court from exercising jurisdiction because

2 We have generally referred to this ruling in 39 ALRB No. 13 as the Board‘s ―no

- public

access‖ ruling or policy.
3 Separate judgments were entered by the trial court against Gerawan and Garcia, respectively, and thus we use the plural.4

.

that section is unconstitutional and ( 2 ) the Board‘s no

- public

- access policy violates a right of public access to civil proceedings protec ted under the federal or state
C onstituti on, or both. 4 We agree with Gerawan and Garcia on the first point, and we remand the action to the trial court on the second. As to section 1164.9, we hold that it s absolute preclusion of superior court jurisdiction, even in exceptional circumstances wher e (as with Garcia) the sole statutory mechanism for judicial review was unavailable and constitutional rights were assertedly at stake , impermissibly divested the superior court of its original jurisdiction without an adequate constitutional foundation for doing so. Therefore,
secti on 1164.9 is unconstitutional. It follows that the judgments of dismissal must be reversed. The trial court had jurisdiction to reach the constitutional issues raised in the several causes of action. Accordingly, we will rever se and remand the case back to the trial court for further proceedings consistent with this opinion. 5

FACTS AND PROCEDURAL HISTORY Gerawan is a family owned farming business based in the Fresno area that grows, harvests and packs stone fruit and table gra pes. It provides employment to several thousand agricultural employees. In 1992, following a contested run

- off election, the UFW was certified by the Board as the exclusive bargaining representative of Gerawan‘s

4 Garcia filed a separate appeal in case No. F070287. Because the appeals by Gerawan and Garcia are virtually identical as to the issues raised, we have ordered the two appeals consolidated for purposes of this opinion.
5 Our resolution of the discrete issue of section 1164.9‘s invalidity should not affect the related case before the California Supreme Court addressing other aspects of the MMC statute. (See Gerawan Farming, Inc. v. Agricultural Labor Relations Bd ., review granted Aug. 19, 2015, S227243.) In that case, the issues being considered by the court are whether the MMC statute unconstitutionally violates equal protection principles or improperly delegates legislative power, as well as whether an employer may raise the defense of union abandonment.5

.

agricultural employees. Although some ini tial bargaining discussions took place at that time, Gerawan and UFW never entered into a CBA. After an absence of contact for nearly two decades, UFW reappeared in late 2012 and demanded a resumption of negotiations with Gerawan. In early 2013, followin g several bargaining sessions with Gerawan, UFW filed a request to the Board to have the parties ordered into the MMC process pursuant to section 1164 et seq. On April 16, 2013, the Board granted UFW‘s request and ordered Gerawan and UFW to commence
the M MC process. A mediator, Matthew Goldberg, was appointed in May 2013. On June 10, 2013, Garcia, a longtime agricultural employee of Gerawan, appeared at an early MMC meeting (along with other Gerawan employees) and asked the mediator for permission to int ervene and participate in the proceedings. At that point in time, the initial voluntary mediation phase of the MMC process had not yet been exhausted. Gerawan supported the idea of allowing employee participation, but UFW did not. The
mediator denied Ga rcia‘s request, explaining that the mediation proceedings were confidential and that he (Garcia) was not a party to those proceedings. On July 10, 2013, Garcia filed a petition with the Board as an alleged interested party, seeking the Board‘s permission to formally intervene and participate in the MMC process. Garcia wanted to participate as an intervening party because the proceedings would likely impact terms and conditions of his employment. He believed that UFW had abandoned him, did not represent h im and could not adequately represent his interests. Gerawan filed points and authorities supporting Garcia‘s petition to intervene. Among other things, Gerawan argued that employees (such as Garcia) and other members of the public were entitled to atten d the on

- the

- record phase of the MMC process based on a qualified First Amendment right

- of

- access. On July 29, 2013, the Board denied Garcia‘s petition to intervene. The Board dec lined to reach Gerawan‘s public access argument because Gerawan allegedly d id not have standing to raise Garcia‘s rights, and Garcia‘s petition had not raised the argument.6

.

On August 2, 2013, Garcia filed a modified request to the Board, asking for permission to simply attend and quietly observe the on

- the

- record portion of the MMC
process. This time, the request was expressly based on an asserted constitutionally protected right of public access to such proceedings. On August 21, 2013, the Board denied Garcia‘s access request. The Board stated it was willing to address the is sue because of its importance: ―[T] he issue raised by Garcia

— whether Garcia and the public have a right of public access to MMC proceedings under the fe deral and state
constitutions

—

presents an issue of first impression which, if left unresolved, could
po tentially result in the deprivation of constitutionally protected rights.‖ The Board discussed the relevant Supreme Court and other precedents and held that the MMC process was distinguishable from civil trials or civil proceedings in which the public has a right of access. The Board reasoned that the MMC process is ―more akin to a labor contract negotiation,‖ and expressed that it could ―not see how public access would play a significant positive role in the functioning of MMC or any type of labor contra ct negotiation for that matter.‖ Therefore, the Board concluded that there was no First Amendment right of access to the Board‘s ―quasi

- legislative proceeding known as
MMC.‖ The Board also ruled that the public had no right of access to MMC proceedings

u nd er the California Constitution. Gerawan filed its complaint for declaratory relief in Fresno County Superior Court on October 28, 2013. Gerawan‘s complaint sought a judicial declaration that the Board‘s

no

- public

- access ruling violated the federal and state C onstitutions by denying to members of the public and the press a right of access to the on

- the

- record phase of the MMC process. Gerawan‘s complaint also sought damages, attorney fees and injunctive
relief under title 42 United States Code section 1 983 (42 U.S.C. section 1983) against individual Board members or officials, premised on the alleged violation of access r ights
under the federal C onstitution.7

.

On December 23, 2013, Garcia filed a motion to intervene in the action in order to file a propos ed complaint

- in

- intervention. On February 11, 2014, the trial court granted Garcia‘s motion. Garcia‘s complaint

- in

- intervention was filed on April 1, 2014. Like Gerawan‘s complaint, Garcia‘s complaint

- in

- intervention sought declaratory relief that
the B oard‘s no

- public

- access ruling violated federal and state constitutional protections of a right of public access to such proceedings. Garcia also sought damages, attorney fees and injunctive relief under 42 U.S.C. section 1983 against individual Board mem bers. The Board demurred to both the complaint and complaint

- in

- intervention, arguing primarily that the trial court lacked jurisdiction to hear any challenge to the Board‘s rulings or decisions, based on section 1164.9. In relevant part, that section pr ovides: ― No court of this state, except the court of appeal or the Supreme Court, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annu l any order or decision of the b oard

.... ‖ (Italics added.) The Board a l so argued that even if
section 1164.9 did not divest the trial court of jurisdiction, no cause of action under
42 U.S.C. section 1983 was available against the individual Board members. Additionally, in its demurrer to Garcia‘s complaint

- in

- intervention, the Board argued that Garcia‘s pleading was untimely under the 30

- day deadline for seeking judicial review set forth in section 1164.5, and also that declaratory relief was not a proper means for challenging the Board‘s rulings. A hearing on the demurrer to Gerawan‘s complaint was held on March 13, 2014. The trial court‘s tentative ruling was to sustain the demurrer without leave to amend because of the jurisdictional bar of section 1164.9, and also because (as to the cause of
action under 42 U.S.C. secti on 1983) immunity defenses would shield the individual
Board members or officials. Following the hearing, the trial court took the matter under
submission and also allowed additional letter briefs to be submitted. On May 15, 2014,
the trial court issued an order affirming its tentative ruling to sustain the demurrer without leave to amend, stating that ―section 1164.9 is dispositive in this matter and is not an8

.

unconstitutional interference with the trial court‘s original jurisdiction.‖ A judgment of
dis missal was entered against Gerawan on June 6, 2014. A hearing was held on the Board‘s demurrer to Garcia‘s complaint

- in

- intervention on June 4, 2014. By order issued on July 7, 2014, the court‘s tentative ruling was adopted as the court‘s order. The tri al court sustained the demurrer without leave to amend, based on the jurisdictional bar of section 1164.9. Additionally, the demurrer was sustained based on Garcia‘s failure to seek judicial review within the 30

- day deadline of section 1164.5, and because the 42 U.S.C. section 1983 cause of action was not available against individual Board members or officials sued in their official capacities. A judgment of dismissal was entered against Garcia on July 25, 2014. Gerawan and Garcia timely filed their sepa rate appeals, raising substantially the same issues. We ordered the two appeals consolidated for purposes of this opinion.
DISCUSSION
I. Standard of Review On appeal from a judgment dismissing an action after sustaining a demurrer, we
review de novo whether the complaint states facts sufficient to constitute a cause of action. ( McCall v. PacifiCare of Cal., Inc . (2001) 25 Cal. 4th 412, 415.) Where a demurrer is sustained without leave to amend, we decide whether there is a reasonable possibility that the de fect can be cured by amendment. ( Blank v. Kirwan (198 5) 39 Cal.3d 311, 318.) An issue of statutory interpretation is reviewed de novo ( People ex rel. Lockyer v. Shamrock Foods Co . (2000) 24 Cal. 4th 415, 432), as is the issue of whether a statute is
consti tutional ( People v. Superior Court ( Mudge ) (1997) 54 Cal.App. 4th 407, 411)

. On the latter question, ― ̳We do not consider or weigh the economic or social wisdom or general propriety‘‖ of the challenged statute; but rather , ― ̳our sole function is to evaluat e [it] legally in the light of establi shed constitutional standards.‘ ‖ ( Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814.) We do so while also recognizing that9

.

― ̳[s]tatutes must be upheld unless their unconstitutionality clearly, positi vely and

u nmistakably appears.‘ ‖ ( I bi d

. )
II. Judicial Review Provisions of MMC Statute As alluded to above, if the parties to the MMC process are unable to enter a CBA during the initial 30

- day voluntary mediation, the mediator certifies that ―the mediation process ha s been exhausted.‖ (§ 1164, subd. (c).) At that point, the on

- the

- record phase of the MMC process commences , in which evidence is received and an official record is maintained: ―Within 21 days, the mediator shall file a report with the board that resolv es all of the issues between the parties and establishes the final terms of a collective
ba rgaining agreement

.... [T]he report shall include the basis for the mediator‘s determination. The mediator‘s determination shall be supported by the record.‖ (§ 11 64, subd. (d); see Cal. Code of Regs., tit. 8 , § 20407 , subds. (c) & (d) .) Within seven days of the filing of the report by the mediator, either party may petition the Board for review of the report. Subject to any relief granted in the Board‘s review, t he report becomes the
final or der of the Board. (§ 1164.3.) Judicial review of a final order of the Board in the MMC process is described in sections 1164.5, 1164.7 and 1164.9. Section 1164.5 , subdivision (a), states that ― [ w ] ithin
30 days after the ord er of the board takes effect, a party may petition for a writ of review in the court of appeal or the California Supreme Court.‖ The same section provides that such review by the C ourt of A ppeal or the Supreme Court is limited to (or ―shall not
extend fur ther than‖) certain grounds, including whether (1) the Board acted in excess of its jurisdiction, (2) the Board has not proceeded in a manner required by law, and (3) the order or decision of the Board violated any right of the petitio ner under the state o r federal C onstitution. (§ 1164.5, subd. (b).) Section 1164.7, subdivision (a), states that

― [ t ] he board and each party to the action or proceeding before the mediator‖ may appear in such a review proceeding in the C ourt of A ppeal or Supreme Court. Upon the review10

.

hearing taking place, ―the court of appeal or the Supreme Court shall enter judgment either affirming or setting aside the order of the board.‖ ( I bi d .) Finally, section 1164.9 sets forth the following jurisdictional restriction on the judicia l review process: ―No court of this state, except the court of appeal or the Supreme Court, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the board [ or ] to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the board in the performance of its official duties, as provided b y law and the rules of court.‖
III. Section 1164.9 is Unconstitutional Based on the plain terms of section 1164.9, t he trial court sustained the demurrer on the ground that it had no jurisdiction over the causes of action challenging the Board‘s

no

- public

- access ruling. In the present appeal, Gerawan and Garcia argue the trial court
erred because section 1164.9 is inva lid in that it unconstitutionally divests the superior court of original jurisdiction. For the reasons set forth below, w e agree. A. Framing the Constitutional Issue Article VI, section 10 of the California Constitution provides that ― [ t ] he Supreme Court, c ourts of appeal, superior courts , and their judges have original jurisdiction in habeas corpus proceedings‖ and ―in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.‖ ―Superior courts have original jurisdiction i n all other causes.‖ ( I

bi d .) Because original jurisdiction has been vested in these courts by the California Constitution, the Legislature is not free to defeat or impair that jurisdiction. ( California Redevelopment Assn. v. Matosantos (2011) 53 Cal. 4th 231, 252

– 253; Chinn v. Superior Court (1909) 156 Cal. 478, 480 [―w here the judicial power of courts, either original or appellate, is fixed by constitutional provisions, the legislature cannot either
li mit or extend that jurisdiction ‖].) Nevertheless, st atutes barring judicial review of certain administrative decisions except in the courts of appeal and/or Supreme Court have been upheld, but only where the Legislature‘s authority to enact such laws was found to11

.

be expressly or impliedly granted by other c onstitutional provisions. ( County of Sonoma v. State Energy Resources Conservation etc . Com . (1985) 40 Cal.3d 361, 369

– 370 ( County of Sonoma ).) Here, section 1164.9 patently seeks to eliminate all superior court jurisdiction to review the Board‘s rulings or decisions in connection with the MMC process, even while
it exclusive ly confines such review to the C ourt of A ppeal or the Supreme Court. Does section 1164.9 unconstitutionally divest the superior court of its original jurisdiction granted under artic le VI, section 10 of the California Constitution ? As already noted, the answer to that question depends on whether there is any other constitutional provision that would expressly or impliedly grant to the Legislature the power to divest the superior

cour t of its original jurisdiction in such matters.
B. The Precedents Establish O ur Approach Although the approach we follow is articulated in the preceding sentence, we have not yet explained why we believe it represents the correct legal standard for analyzing the constitutional issue before us. That is our present task, which is made simpler by the fact that the wording of section 1164.9 is not unique and the question of how to resolve the constitutional issue before us is not new. On several prior occasions , the Legislature has enacted statutes virtually identical to section 1164.9. 6 Indeed, it seems certain that section 1164.9 was modeled after these prior statutes. Because these prior enactments were challenged on the same constitutional ground as here, a number of relevant precedents exist (including opinions of the California Supreme Court) that highlight the correct legal test to be applied. We now examine these key precedents.
In Pacific Telephone etc. Co

. v. Eshleman (1913) 166 Cal. 640 ( Eshleman ), the Supreme Court addressed the constitutionality of a statute that conferred exclusive

6 See, e.g., Labor Code section 5955, Public Utilities Code section 1759 (formerly § 67 of the Public Utilities Act), and Business and Professions Code section 23090.5, each of which contain substantially the same wording as Labor Code section 1164.9.12

.

jurisdiction on the Supreme Court to review the decisions of the Railroad Commission. The statute under consideration was section 67 of the former Public Utilities Act, 7 which section stated in relevant part that ―  ̳[ n ] o court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to reverse, correct, or annul any order or decision of the commission or to suspend or delay the execu tion or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official
duties. ‘ ‖ ( Eshleman , supra , at p. 649.) As in our present appeal, the petitioner in
Eshleman argued that by conferring exclusive jurisd iction on the Supreme Court, the Legislature violated the C onstitution by impairing the original jurisdiction of the superior court. ( I bi d .) The Supreme Court declared it was a fact ―which cannot be blinked [at] and must be faced‖ that ―the legislature h as with deliberation restricted and curtailed the jurisdiction vested in the superior courts of this state by the c onstitution. And upon this but one thing can be said. If there be not in the constitution itself warrant and power to the legislature to do this thing, its effort must be declared illegal .‖ ( Id . at p. 652, italics added.) As will be seen, this rule pronounced by the Supreme Court in Eshleman
established the basic tes t to be applied in such cases.
In ascertainin g whether any provision of th e C onstitution would permit the Legislature to divest the superior court of jurisdiction to review Railroad Commission decisions, Eshleman examined the provisions of former article XII, sections 22 and 23 of the California Constitution, which had establish ed and empowered a Railroad

7 With minor modifications, this jurisdictional statute is now codified in Public Utilities Code section 1759. (See Hickey v. Roby (1969) 273 Cal.App.2d 752, 763

– 764.) Section 1759, subdivision (a), of the Public Utilities Code states: ―No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution o r operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.‖ Subdivision (b) of Public Utilities Code section 1759 states: ―The writ of mandamus shall lie from the Supreme Court and from the court of appeal to the commission in all proper cases as prescribed in Section 1085 of the Code of Civil Procedure.‖13

.

Commission. 8 ( Eshleman , supra , 166 Cal. at p p

. 652

– 654.) We briefly reiterate the relevant constitutional provisions considered by the court. Under former article XII, section 22, of the California Constitution, the Railroad Commission was granted power to establish rates charged by railroads and other transportation companies, to hear and determine complaints, administer oaths, subpoena witnesses, examine records, take testimony and punish for contempt in the same manner as c ourts of record. (Cal. Const

. , reprinted at vol. 3, Deering Ann. Cal. Codes ( 1974 ed.) at pp. 201

– 202 [former Cal. Const., art. XII, § 22, as amended in 1911].) Former article XII, section 22, further provided: ―  ̳ No provision of this constitution shall be construed as a limitation upon the authority of the legislature to confer upon the railroad commission additional powers of
the same kind or different from those conferred herein which are not inconsistent with the powers conferred upon the railroad com mission in this constitution, and the authority of the legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this constitution. ‘ ‖ ( Es hleman , supra , 1 6 6 Cal. at p. 653.) Additionally, as summari zed by the court in Es hleman : ―Section 23 of the same article defined  ̳public utilities‘ and brought all such utilities under the control of the railroad commission. Section 23 then declared:  ̳The railroad commission shall have and exercise such power a nd jurisdiction to supervise and regulate public utilities, in the state of California, and to fix the rates to be charged for commodities furnished, or services rendered by public utilities as shall be conferred upon it by the legislature, and the right

o f the legislature to confer powers upon the railroad commission respecting public

8 Under subsequent amendments to article XII of the California Constitution, the Railroad Commiss ion became the present Public Utilities Commission (PUC) . ( See Cal. Const., art. XII, §§ 1

– 9.) The current article XII, section 5, states the Legislature‘s authority more succinctly than the earlier versions, as follows: ―The Legislature has plenary pow er, unlimited by the other provisions of this constitution but consistent with this article, to confer additional authority and jurisdiction upon the commission, to establish the manner and scope of review of commission action in a court of record, and to enable it to fix just compensation for utility property taken by eminent domain.‖14

.

utilities is hereby declared to be plenary and to be unlimited by any p rovision of this
constitution. ‘‖ ( Eshleman , supra , at p. 653. ) Based on the above constitutional prov isions, which not only created the Railroad Commission with broadly defined powers to regulate railroads, but also expressly granted to the Legislature a ―  ̳ plenary ‘ ‖ authority to confer other powers on the commission

―  ̳ unlimit ed by any provision of this co nstitution ‘ ‖ ( Eshleman , supra , 166 Cal. at p. 653, italics added), Eshleman concluded that there was co nstitutional authority for the
L egislature to restrict the superior court‘s jurisdiction ( id. at pp. 658

– 6 60)

. In other words, no infringement was found of the constitutional grant of original jurisdiction to the superior courts because other constitutional language gave the Legislature plenary authority to add to the powers expressly conferred on the commission unhindered by any other provisions of the C alifornia C onstitution. (See Pickens v. Johnson (1954) 42 Cal.2d 399, 404 [citing Es hleman for proposition that ― T he [PUC] has been established under a constitutional enabling act with full power conferred on the Legislature to enact legislation even cont rary to any other provision s of the Constitution provided it be cognate and germane to the regulation and control of public utilities

. ‖].)
In Loustalot v. Superior Court (1947) 30 Cal.2d 905 ( Loustalot ), the Supreme Court reviewed the constitutionality of a statute permitting only appellate courts to review the rulings of the Industrial Accident Commissi on founded under former
article XX, section 21 of the California Constitution (now art. XIV, § 4 [workers ‘ compensation system].) The subject statute, for mer section 5955, stated in relevant part
as follows: ―  ̳ No court of this State, except the supreme court and the district courts of appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul any order, rule, decision, or award of the commission, or to suspend or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the commission in15

.

the performance of its duties....‘ ‖ ( Loustalot , supra , at p. 910, italics omitted. ) 9 Preliminarily, the Supreme Court noted it was ―without question‖ that Labor Code
section 5955 was modeled after section 67 of the Public Utilities Act upheld in Eshleman and, therefore, ―the decisions interpreting section 67‖ would apply, including Eshleman and its progeny. ( Loust

alot , supra , at p. 911.) In concluding the Legislature had authority to enact section 5955, the court in
Loustalot emphasized that former article XX, section 21 of the California C onstitution expressly conferred ―plenary power of the Legislature to control the review of Industrial Accident Commission decisions subject to the condition that decisions may be reviewed by the appellate courts.‖ ( Loustalot , supra , 30 Cal.2d at p. 911.) That constitutional provision gave plenary power to the Legislature that wa s ―  ̳ unlimited by any provisions of
this constitution ‘ ‖ to create and enforce ―  ̳ a complete system of workmen‘s compensation, ‘ ‖ including the creation of a tribunal vested with the requisite governmental functions to determine any dispute or matter arising u nder such legislation

―  ̳ expeditiously , inexpensively, and without encumbrance of any character ....‘ ‖ ( Id . at
p. 912.) The only limitation in article XX, section 21 on the Legislature‘s power with respect to the tribunal in question was ―the provision for r eview of its decisions by this court and the District Courts of Appeal.‖ ( Loustalot , supra , at p. 912. ) Thus, ―[i]n restricting any interference with the commission‘s decisions or orders to proceedings in the appellate courts, the Legislature has carried out the declared policy of the constitutional provision that the commission be unencumbered by any but proceedings in the appellate courts.‖ ( Id . at pp. 912

– 913.)

9 The current section 5955 refers to the ―appeals board‖ rather than the commission, but is otherwise substantially the same. Section 5955 states: ―No court of this state, except the Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul any order, rule, decision, or award of the appeals board, or to suspend or delay the operation or execution thereof, o r to restrain, enjoin, or interfere with the appeals board in the performance of its duties but a writ of mandate shall lie from the Supreme Court or a court of appeal in all proper cases.‖16

.

Similarly, in Dept. of Alcoholic Bev

. Control v. Superior Court (1968) 268 Cal.App.2d 67 ( D ept. of Alcoholic Bev

. Control ), the Court of Appeal considered the constitutionality of a statute that restrict s judicial review of decisions of the Department of Alcoholic Beverage Control to the appellate courts. The statute in question, Business
and P rofessions Code section 23090.5, state s as follows: ―  ̳ No court of this state, except the Supreme Court and the courts of appeal to the extent specified in this article, [ 10 ] shall have jurisdiction to review, affirm, reverse, correct, or annul any order, ru le, or decision of the department or to suspend, stay [ , ] or delay the operation or execution thereof, or to
restrain , enjoin, or interfere with the department in the performance of its duties, but a writ of mandate shall lie from the Supreme Court or the c ourts of appeal in any proper

case. ‘ ‖ ( Dept. of Alcoholic Bev. Control , supra , at p. 69.) The court observed that
Business and Professions Code section 23090.5 was plainly ―modeled after section 5955 of the Labor Code, which in turn was modeled after sec tion 67 of the Public Utilities Act of 1911 [now section 1759 of the Public Utilities Code].‖ ( Dept. of Alcoholic Bev.
Control , supra , at p. 70.) The issue presented in Dept. of Alcoholic Bev. Control was whether the law‘s denial of superior court jurisdi ction to review the department‘s decisions was authorized by article XX, section 22 of the California Constitution, the provisions addressing the

s tate‘s regulation of alcoholic beverages. Among other things, article XX, section 22 expressly establishes a nd empowers the Department of Alcoholic Beverage Control, creates an appeals board, and grants to the Legislature broad powers over the implementation of the matters explicitly provided therein. (Cal. Const., art. XX, § 22.)
In its consideration of the i ssue before it, the court found it significant that the powers conferred upon the Legislature in article XX, section 22 were ― comprehensive ‖ in

10 Section 23090.5 is a part of article 5 , division 9, ch apter 1.5 of the Bus iness and Professions Code, which contains the judicial review provisions relating to the decisions of the department made by the Alcoholic Beverage Control Appeals Board.17

.

character ( Dept. of Alcoholic Bev. Control , supra , 268 Cal.App.2d at p. 73 , italics added ), as indicated by the following summary: ― The first paragraph of section 22 provides that the state, and hence the Legislature,  ̳shall have the exclusive right and power to license and regulate the manufacture, sale, purchase, possession and transportation of alcoholic beverag es within the S tate

... ‘ subject to the limitations therein provided. The second paragraph provides that  ̳[all] alcoholic beverages may be bought, sold, served, consumed and otherwise disposed of in premises which shall be licensed as provided by the Legisl ature‘ and authorizes the Legislature to provide for the issuance of licenses to certain types of premises. The fifth paragraph provides that the Department  ̳shall have the exclusive power, except as herein provided and in accordance with laws enacted by the Legislature‘ to license the manufacture, importation and sale of alcoholic beverages
in this state. The seventh paragraph relating to appeals to the Board from a decision of the Department provides that  ̳the board shall review the decision subject to such limitations as may be imposed by the Legislature,‘ prescribes the  ̳scope of review‘ by the Board, and concludes with the sentence:  ̳Orders of the board shall be subject to judicial review upon petition of the director or any party aggrieved by such o rder.‘ The thirteenth paragraph provides that  ̳[all] constitutional provisions and laws inconsistent‘ with the section are repealed and the fourteenth paragraph that the provisions of the section are
self

- executing,  ̳but nothing herein shall prohibit the Legislature from enacting laws implementing and not inconsistent‘ with the section.‖ ( Id

. at p p. 73

– 74.) In light of such comprehensive powers conferre d on the Legislature in article XX,
section 22 of the California Constitution , which included the expres s power to enact laws to implement the provisions of section 22 in a manner not inconsistent therewith, the court concluded that the Legislature had authority to enact Business and Professions
Code section 23090.5. ( Dept. of Alcoholic Bev. Control , supra , 268 Cal.App.2d at
pp. 72

– 75.) Th e court explained: ―While article XX, section 22, provides that  ̳orders of the board shall be subject to judicial review upon petition of the director or any party18

.

aggrieved,‘ it does not specify the court in which review is to be obta ined nor the procedure therefor . The enactmen t of the amendments in question [ , i.e., Bus iness and
Prof essions Code section 23090.5 , ] merely constitutes a reasonable exercise of the express legislative authority to implement or carry out the c onstitutional provision.‖ ( Id.

at pp. 74

– 75.) Finally, in County of Sonoma , the county challenged the constitutionality of
former Public Resources Code section 25531, 11 which confined judicial review of a narrow class of Energy Commission decisions to the Supreme Court. The issue raised by the county was whether the statute infringed on the original jurisdiction of the superior courts granted by article VI, section 10 of the California Constitution. ( County of
Sonoma , supra , 40 Cal.3d at p. 367.) The Sup reme Court noted that former Public
Resources Code section 25531 was a means of implementing and facilitating the PUC‘s licensing of thermoelectric power facilities in cases in which an Energy Commission certificate was required as a prerequisite to PUC ap proval. ( County of Sonoma , supra , at
pp. 364

– 366, 371.) Because of this ―close relationship between the functions of the PUC and the narrow class of Energy Commission decisions affected by [former Public
Resources Code ] section 25531,‖ the Supreme Court held that the section‘s judicial review provisions came ―within the broad legislative authority over PUC matters conferred by article XII‖ of the California Constitution. ( County of Sonoma , supra , at
p. 367. ) In so holding, the Supreme Court emphasized t he broad plenary authority granted in article XII, which provide s in section 5 that ―  ̳ [t ] he Legislature has plenary power, unlimited by the other provisions of this constitution but consistent with this article, to confer additional authority and jurisdict ion upon the [PUC and] to establish the

11 In relevant part, former Public Resources Code section 25531, subdivis ion (a), provided that certain Energy Commission decisions ―  ̳ shall be subject to judicial review in the same manner as the decisions of the [PUC]

.... ‘ ‖ ( County of Sonoma , supra , 40 Cal.3d at p. 366, fn. 6.)19

.

manner and scope of review of commissi on action in a court of record ....‘ ‖ ( County of
Sonoma , supra , at p. 367 .) Although article XII referred only to the PUC and not to the Energy Commission, the Supreme Court foun d ― [ e ] specially pertinent‖ the ―decisions which hold that statutes confining judicial review of administrative decisions to the appellate courts are within legislative powers implied , but not specified, by the Constitution.‖ ( County of Sonoma , supra , at p p. 369

– 370 , italics added , citing Loustalot , supra , 30 Cal.2 d at pp. 912

– 913 & Dept. of Alcoholic Bev. Control , supra , 268 Cal.App.2 d at p. 74, among other cases.) In light of the strong presumption of the constitutionality of legislative acts and the clo se relationship between the PUC and the narrow class of Energy Commission decisions at issue in the statute, the Supreme Court concluded that ―the Legislature‘s power to enact the judicial review provisions of [former Public Resources Code] section 25531 i s implied by the comprehensive authority given the Legislature by article XII over the operations of the PUC.‖ ( County of Sonoma , supra , at p. 370.) 12 Conspicuously running through the above cases is a common test or standard that was applied to determine the constitutionality of the enactment at issue. Each decision upholding a statutory elimination of the superior court‘s original jurisdiction to review certain administrative decisions was premised explicitly on provisions in the C onstitution empowering the Legislature to enact the statute in question. In other words, a statute that divests the superior court of its original jurisdiction granted under article VI, section 10 of the California Constitution will be upheld only if the authority to enact such a law is expressly or impliedly conferred on the Legislature by other constitutional provisions.

12 A dissenting opinion by Justice Mosk, with who m Justice Lucas concurred, disagreed with this conclusion because there was no language in the Constitution referring to the Energy Commission by name upon which to premise the restriction on superior court jurisdiction. ( County of Sonoma , supra , 40 Cal.3 d at p. 373 (dis. opn. of Mosk, J.).) The majority opinion and the dissenting opinion did not disagree on the test to be applied, but only on the question of whether it was satisfied.20

.

As the above summary of the case law demonstrates, this approach is well established by longstanding precedent, including decisions of the Supreme Court begi nning with
Eshleman . Thus, we are required to follow and apply that same approach here.
C. No Constitutional Basis to Divest Court of Jurisdiction Applying the approach necessitated by the above authorities to the present case, we are presented with the fol lowing question: Is there any provision in the California Constitution empowering the Legislature to eliminate the superior court‘s original jurisdiction to review the Board‘s decisions relating to MMC matters? The Board claims that article XIV, section 1, of the California Constitution supplies what is needed. That provision states: ―The Legislature may provide for minimum wages and for the general welfare of employees and for those purposes may confer on a commission legislative, executive, and judici al powers.‖ We cannot agree with the Board‘s position. There is nothing in article XIV, section 1, to even arguably indicate the Legislature was granted power to divest the superior court of jurisdiction to review decisions of the Board. While that prov ision does authorize the Legislature to cr eate a commission and to grant judicial and other governmental functions to it, the ability to create a commission and endow it with certain functions does not imply the power to eliminate the superior courts‘ orig inal jurisdiction co ncerning the Board‘s decisions. Nor do the relevant precedents assist the Board‘s effort to salvage section 1164.9. Unlike the constitutional provisions in the Eshleman and Loustalot cases, article XIV,
section 1 of the California Con stitution does not expressly confer upon the Legislature plenary power unlimited by other provisions in the C onstitution. Unlike the County of
Sonoma case, here there is no basis to conclude that the subject matter of the Board‘s
decisions would come with in the broad constitutional authority to restrict judicial review
of another entity‘s (e.g., the PUC‘s) decisions. Finally, unlike the unique situation in the Dept. of Alcoholic Bev

. Control case, here there is no comparable and similarly comprehensive con stitutional scheme in place from which a power to restrict judicial21

.

review might reasonably be implied from the express provisions. ( Dept. of Alcoholic
Bev. Control , supra , 268 Cal.App.2d at p. 73.) In that case, the constitutional provision at issue ( 1) conferred extensive and detailed powers upon the Legislature over all aspects of the subject matter being regulated (i.e., alcoholic beverages in the state ), ( 2) est ablished an agency with broadly stated regulatory powers, including the creation of
an app eals board and a requirement of some form of judicial review, and ( 3) explicitly gave to the Legislature power to implement such provisions in any manner not inconsistent therewith. ( Id

. at pp. 73

– 74 .) Noth ing close to that exists here. Although the Boar d argues that article XIV, section 1 of the California
Constitution is comprehensive, we disagree that the legislative power conferred in that provision reasonably extends to the elimination of superior court jurisdiction to review Board decisions, which i s what section 1164.9 clearly purports to do. Article XIV,
section 1 makes no mention of judicial review and provides no hint that the Legislature was being empowered to negate or impair what the C onstitution elsewhere ordains on that subject. As we have labored to explain herein, article XIV, section 1 simply describes a general grant of authority to create and empower a commission such as the Board; it reveals no basis for finding an implied power to enact laws defeating the superior court‘s original ju risdiction. We would add that, if mere constitutional permission to create and empower a board or commission to exercise certain adjudicative or other governmental functions in a particular regulatory field were enough, by i tself, to allow a finding that i mplied power was granted to the Legislature to disregard the express grant of original jurisdiction to superior courts, virtually any claim of implied power might be similarly rationalized as a means of trumping express constitutional provisions in such ad ministrative contexts.
Since we have a written C onstitution, we cannot countenance such an easy

- come , easy

- go approach to its express provisions. Rather, we follow (as we must) the longstanding rule announced by the California Supreme Court in Esh leman t hat says: ― If there be not in the22

.

constitution itself warrant and power to the legislature to do this thing , its effort must be declared illegal. ‖ ( Es hleman , supra , 166 Cal. at p. 652, italics added.) Based on all of the foregoing discussion, we conclud e that section 1164.9 is unconstitutional because it divests the superior court of its original jurisdiction granted under article VI, section 10 of the California Constitution without any consti tutional warrant for doing so.
D. Comparison to Section 1160.8 One final issue must be put to rest in our analysis of section 1164.9. In its order sustaining the demurrer to Gerawan‘s complaint, the tr ial court reasoned that
section 1164.9 must be constitutional because a similar statute in the ALRA (i.e., § 1160.8) was found to be constitutional by the California Supreme Court in the case of
Tex

- Cal Land Management, Inc. v. Agricultural Labor Relations Bd . (1979) 24 Cal.3d 335 ( Tex

- Cal ). In the present appeal, the Board similarly suggests that since
section 1160.8 i s constitutional, so too is section 1164.9. We reject the reasoning of the trial court and the Board on this issue because sections 1160.8 and 1164.9 are not parallel statutes; they are materially distinguishable provisions. While section 1160.8 initiall y directs or channels judicial review of the Board‘s unlawful labor practice decisions to the appellate courts, it does not purport to strip the superior court of jurisdiction. On the other hand, sectio n 1164.9 (which begins with the imperative command ― [ n ] o court of
this state ‖ ) on its face has but one objective: to eliminate superior court jurisdiction with respect to the matters described therein. In light of these basic differences between the two statutes, it should come as no surprise that the Tex

- Cal decision (approving § 1160.8), when properly understood, does not indicate that section 1164.9 is constitutional. We proceed to explain. In relevant part, section 1160.8 provide s that in unfair labor practice matters,

― [ a ] ny person aggrieved by the fi nal order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the court of appeal having23

.

jurisdiction over the county wherein the unfair labor practice in question was alleged to have been engaged in , ... by filing in such court a written petition requesting that the order of the board be modified or set aside.‖ The same section provides that the Court of
A ppeal reviewing the matter may ―enter a decree enforcing, modifying , ... or setting
aside in whole o r in part, the order of the board ,‖ and adds that ―[t]he findings of the board with respect to questions of fact if supported by substantial evidence on the record
considered as a whole shall ... be conclusive.‖
In Tex

- Cal , the Supreme Court considered sever al constitutional issues relating to the original jurisdiction of appellate courts. The issues arose because section 1160.8 provides for ―initial review of board orders by an appellate rather than a superior court‖ ( Tex

- Cal , supra , 24 Cal.3d at p. 342), i mposes a standard of review on the appellate court reviewing the Board‘s factual findings and aut horizes the appellate court to enforce the Board‘s order to the extent it is affirmed ( i d

. at p. 3 47)

. After resolving the standard of review issue, 13 the Supr eme Court turned to the question of whether section 1160.8 impermissibly conferred jurisdiction on the appellate courts greater than that which was granted under article VI, sections 10 and 11 of the California Constitution. The rule to be applied was tha t ―[t]he Legislature may not give to courts a jurisdiction beyond that conferred or authorized by the Constitution. [Citation.]‖ ( Tex

- Cal , supra , at p. 347. ) After reciting the text of article VI, sections 10 and 11, the court expressly acknowledged

at the outset of its discussion that ― [ t ] he jurisdiction conferred by section 1160.8 is subject to those limitations.‖ ( Ibid

. )

13 Regarding the standard of review issue, the court stated: ―We ... hol d that the Legislature may accord finality to the findings of a statewide agency that are supported by substantial evidence on the record considered as a whole and are made under safeguards equivalent to those provided by the ALRA for unfair labor practice proceedings, whether or not the California Constitution provides for that agency‘s exercising  ̳judicial power.‘‖ ( Tex

- Cal , supra , 24 Cal.3d at p. 346.)24

.

The Supreme Court ultimately upheld section 1160.8 ‘s provision for appellate

court re view of the Board‘s final orders because such review was consistent with the original jurisdiction of appellate courts to hear extraordinary writs of mandate. ( Tex

- Cal , supra , 24 Cal.3d at p. 350.) Since the review described in section 1160.8 was essentially that of an extraordinary writ of mandate, it could be directed in the first instance to the
C ourt of A ppeal rather than to the sup erior court: ―The Constitution ... grants superior courts no broader extraordinary writ jurisdiction than it grants this court and the Courts of Appeal. [Citations.] Though appella te courts often decline for non constitutional reasons to assume jurisdiction in extraordinary writ matters deemed more appropriate for the superior court [c itations], a mandate proceeding initiated in an appellate court is a constitutionally permitted vehicle for reviewing an administrative determination [ c itations]

. ‖ ( Tex

- Cal , supra , at pp. 350

– 351 .) However, to avoid any conflict with the nature of the appellate courts‘ original jurisdiction to entertain such writ relief, the Supreme Court refused to construe section 1160.8 as automatically requiring a plenary hearing ―as a matter of right.‖ Instead, in accordance with the basic characteristics of extraordinary writ proceedings, section 1160.8 was construed to permit summary denials
of suc h writ petitions. ( Tex

- Cal , supra , at p p

. 350

– 351.) 14 As should be apparent from the above summary of the Tex

- Cal case, the issue of whether an ALRA statute may divest the superior court of original jurisdiction was not before the court. Rather, Tex

- Cal m erely considered whether an ALRA statutory provision (§ 1160.8) initially directing judicial review to the appellate courts violated the grant of original jurisdiction to appellate courts by impermissibly expanding on that jurisdiction. The court held it did not do so. Moreover, as noted above, the court

14 Likewise, Tex

- Cal found the provision in section 1160.8 allocating respons ibility to Courts of Appe al to enforce orders that they sustained on review was constitutional because it was consistent with the appellate court‘s original jurisdiction in proceedings in the nature of mandamus, since a writ of mandate may issue to compel the performance of an act that the law specifically enjoins. ( Tex

- Cal , supra , 24 Cal.3d at pp. 351

– 352.)25

.

prefaced its discussion of that issue by affirming the foundational principle that ― [ t ] he jurisdiction conferred by section 1160.8 is subject to ‖ the grant of original jurisdiction set
forth in article VI , sections 10 and 11 of the California Constitution. ( Tex

- Cal , supra , 24
Cal.3d at p. 347, italics added.) It also explained that to construe section 1160.8 as creating an appeal of right ―would put it in conflict with Article VI, section 10.‖ ( Tex

Cal , supra , at p. 350, italics added.) By using such terms, the court explicitly acknowledged the proposition that section 1160.8 had to fully comport with article VI,
section 10 of the California Constitution. ( Tex

- Cal , supra , at pp. 351

– 352.) If there wer e some other constitutional provision (e.g., Cal. Const., art. XIV, § 1) that conferred on the Legislature the power to expand or alter original jurisdiction in regard to judicial review of the Board‘s orders, we do not think the Supreme Court would have e xpressly recognized that article VI, section 10 was supreme over the ALRA‘s judicial review provisions. For this reason, Tex

- Cal appears to support the position advanced by Gerawan and Garcia that no constitutional provision gave the Legislature authority to enact section 1164.9. In any event, it is clear that the trial court‘s assumption that
because Tex

- Cal upheld t he constitutionality of section 1160.8, the same result follows
for sectio n 1164.9, was plainly mistaken. There is yet another reason to dis tinguish section 1 160.8 from section 1164.9: Section 1160.8 has never been construed as barring all recourse to the superior court. Instead, such recourse has been permitted in exceptional circumstances where the prescribed judicial review process was un available or patently inadequate and a significant statutory or constitutional violation was asserted that warranted such redress. (See Yamada Brothers v. Agricultural Labor Relations Bd . (1979) 99 Cal.App.3d 112,
118

– 124, 129 [exception applied; trial co urt had jurisdiction to hear writ of mandate petition; demurrer ruling based on lack of jurisdiction per § 1160.8 reversed]; see also Agricultural Labor Relations Bd. v. Superior Court (1996) 48 Cal.App. 4th 1489, 1498

– 15 1 0 [noting exceptions exist permitti ng superior court jurisdiction, but concluding that26

.

such exceptions did not apply in that case]; United Farm Workers v. Superior Court (1977) 72 Cal.App.3d 268, 273

– 275 [same]; Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781, 788

– 789 [same].)
To i llustrate this point

— i.e., that section 1160.8 does not bar superior court jurisdiction in certain exceptional cases

— it may be helpful to consider an example in which the exception has been applied. One notable example is the situation where the general c ounsel of the ALRB refuses a request to issue an unfair labor practice complaint. In that situation, there is no final order of the Board from which to seek review under the statutory procedure set forth in section 1160.8. Thus, the specified method of j udicial
review cannot be utilized. In Belridge Farms v. Agricultural Labor Relations Bd . (1978) 21 Cal.3d 551 ( Belridge ), the Supreme Court considered whether judicial review was nevertheless available by other means, looking to analogous federal cases un der the National Labor Relations Act (29 U.S.C. § 151 et seq. ; the NLRA) . The court in Belridge noted that, while a refusal to issue a complaint under the NLRA is generally not reviewable, nevertheless ―federal courts have exercised their equitable powers to review such determinations when the complaining party [ ( 1 ) ] raises a colorable claim that the decision violates [a] constitutional right [citations] or [ ( 2 ) ] exceeds a specific grant of authority [citations] [ or ( 3 ) is ] based on an erroneous constructi on of an applicable
statute.‖ ( Belridge , supra , at p. 556.) The Supreme Court concluded that the Legislature, in enacting section 1160.8, intended to adopt the federal rule. ( Belridge , supra , at
p p

. 556

– 557.) More recently, in the case of International Assn. of Fire Fighters, Local 188, AFL

CIO v. Public Employment Relations Bd. (2011) 51 Cal. 4th 259 ( Fire Fighters ), which also involved the decision of the Public Employment Relations Board ( PERB) not to file a complaint for unfair labor practices, the Su preme Court applied the interpretation27

.

articulated in Belridge to a similar judicial review statute (Gov. Code , § 3509.5) 15 and expressly approved superior court jurisdiction in Belridge

- like situations. ( Fire Fighters , supra , at pp. 268

– 271.) In so holdi ng, the Supreme Court emphasized that, in light of the original jurisdiction granted to superior court s under article VI, section 10 of the California Constitution, a presumption existed in favor of judicial review and the court would not ―infer a legislat ive intent to entirely deprive the superior courts of judicial authority in a particular area.‖ ( Fire Fighters , supra , at p. 270.) Since the statutory language did not expressly foreclose such jurisdiction, it was construed as permitting judicial review in the superior court for the category of exceptional cases under
consideration. ( Id

. at p. 271. ) 16 As the above cases serve to illustrate, judicial review provisions of the type set
forth in section 1160.8 have not been construed as precluding all superio r court jurisdiction relating to the administrative decisions or issues described in the statute. Exceptions have been allowed, particularly where judicial review under the prescribed statutory process would not be available and substantial statutory or c onstitu tional violations are alleged.

15 Government Code section 3509.5 directs judicial review of PERB decisions to the Courts of Appeal by means of petition for writ of mandate.
16 The Supreme Court further conc luded: ―In section 3509.5, the Legislature has not expressly provided or otherwise clearly indicated that under California‘s [Meyers

- Miller

- Brown Act (MMBA) (Gov. Code , § 3500 et seq.),] superior courts are prohibited in all circumstances from exercising traditional mandamus jurisdiction to review a PERB decision refusing to issue a complaint. In particular, the Legislature has not explicitly barred superior court traditional mandamus review in the limited circumstances in which such review is available f or similar agency decisions under the federal NLRA and the state ALRA. Accordingly, we agree with the Court of Appeal here that when PERB refuses to issue a complaint under the MMBA, a superior court may exercise mandamus jurisdiction to determine whether PERB‘s decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction.‖ ( Fire Fighters , supra , 51 Cal.4th at p. 271.)28

.

In summary, compelling reasons exist for concluding that section 1164.9 is not analogous to section 1160.8. 17 Statutes such as section 1160.8 simply direct judicial review to the appellate courts; they do not eliminate all superior court jurisdiction and , in
fact , such jurisdiction continues with respect to certain exception al cases. In contrast,
section 1164.9 seeks to altogether divest the superior court of jurisdiction over the
matters described therein. Because th e two statutes differ in these material ways, the fact
that section 1160.8 has been found constitutional in Tex

- Cal does not indicate the same result should follow with respect to section 1164.9. If anything, as we have pointed out above, the Supreme Cour t‘s analysis in Tex

- Cal tends to support the conclusion we have
reached that section 1164.9 is unconstitutional. 18
E. Conclusions on Jurisdiction To recapitulate our constitutional holding: Based on longstanding Supreme Court authority ( Eshlema n , supra , 166 C al. 640 ; Loustalot , supra , 30 Cal.2 d 905 ; County of
Sonoma , supra , 40 Cal.3d 361), a statute such as section 1164.9 is sustainable only if authorized by constitutional language that expressly or impliedly confers power on the Legislature to enact a law div esting the superior court of original jurisdiction. Because no constitutional provision warranted the enactment of section 1164.9, we have declared
that section to be unconstitutional. This holdin g leads us to a follow

- up question bearing
on the outcome of the present appeal: With section 1164.9 removed from the equation, does the trial court have jurisdiction to consider the pleadings file d by Gerawan and
Garcia below?

17 As will be seen, the section of the MMC statute that parallels s ection 1160.8 is actually section 1164.5.
18 That is so because, as discussed above, Tex

- Cal presupposes that the judicial review provisions of the ALRA were subject to the grant of original jurisdiction set forth in article VI, section 10 of the Californi a Constitution.29

.

We answer that question in the affirmative. Superior court jurisdiction exists
becau se section 1164.5, one of the remaining provisions of the MMC statute addressing judicial review, is nearly identical to section 116 0.8 in directing review to the C ourts of
A ppeal in the first instance. Accordingly, the same exceptions would apply for all owing judicial review in the superior court. We believe Garcia‘s invocation of superior court jurisdiction came within the purview of the permitted exceptions. As to Garcia‘s causes of action challenging the Board‘s no

- public

- access ruling, the method of judicial review specified in section 1164.5 was unavailable to Garcia since he was not a party to the MMC process. (See § 1164.5, subd. (a) [after the Board‘s final order, ―a party‖ to MMC proceedings ―may petition for a writ of review in the court of ap peal ‖ on certain grounds]; see also Yamada Brothers v. Agricultural Labor Relations Bd ., supra , 99 Cal.App.3d at p. 121 [a ―prerequisite‖ of the exceptions to statutory judicial review procedure is the unavailability of an ultimate judicial remedy in conju nction with that procedure].) Not only was Garcia shut out from the statutory judicial review mechanism, but he alleged a colorable claim that the Board committed a substantial constitutional violation by denying public access to Garcia and other members of the public. (See, e.g., United Farm Workers v. Superior Court , supra , 72 Cal.App.3d at p. 274 [―a furthe r exception has been recognized ... when the constitutional rights of the complaining party have been violated‖].) For these reasons, we conclude tha t Garcia‘s claims came within the scope of the exceptional cases noted above that al low for superior court review. Gerawan‘s claims allege the identical constitutional violation that Garcia ‘s did, and we believe those claims likewise may be heard in the su perior court. Gerawan previously filed a petition for writ of review to this court in case No. F068526, challenging the Board‘s final MMC order on multiple statutory and constitutional grounds, including the same constitutional right

- of

- access claim argue d in the present30

.

appeal. 19 In our decision in that case, which is presently before the Supreme Court ( Gerawan Farming, Inc. v. Agricultural Labor Relations Bd ., review gr anted Aug. 19, 2015, S227243) , we held that the MMC statute was unconstitutional for v iolating equal protection principles and impermissibly delegating legislative authority. In light of those conclusions, we found it unnecessary to address other constitutional issues. Thus,
Gerawan followed section 1164.5 and fully exhausted the prescrib ed procedure 20 to obtain judicial review of the constitutional public access issue, but through no fault of its own we declined to reach it. Meanwhile, the alleged constitutional violation committed by the Board persists and the purported need for declarat ory relief has not abated, because the Board‘s no

- public

- access ruling was plainly a broad policy statement that will be applied in future MMC proceedings. In these unique circumstances, particularly where Gerawan‘s causes of action challenge the same no

- public

- access ruling on the same constitutional grounds as Garcia‘s, we see no reason to deny Gerawan from having
its declaratory relief claims heard with G arcia‘s in the superior court. For these reasons, the superior court had jurisdiction to hear and co nsider the causes of action set forth in Garcia‘s and Gerawan‘s pleadings filed below, and the trial court erred by sustaining the demurrers on the ground that it lacked jurisdiction under section 1164.9. Not only is section 1164.9 unconstitutional (as we have held), but the other judicial review provisions of the MMC statute did not create a jurisdictional impediment to hearing the case in the superior court, as we have explained above.

19 We grant Gerawan‘s request for judicial notice of court records and filings in this related
case. 20 Regarding exhaustion of remedies, we note the parallel ALRA statute providing for judicial review to an appellate court after a final or der of the Board (i.e., § 1160.8) has been treated as establishing an ―exclusive primary jurisdiction‖ in the Board, and principles of exhaustion of remedies have been applied to such provisions. (See California Coastal Farms, Inc. v. Doctoroff (1981) 117 Cal.App.3d 156, 160

– 162; see also United Farm Workers v. Superior Court , supra , 72 Cal.App.3d at pp. 27 6

– 277 [― [ w ] ith limited exceptions not applicable to the facts of this case,‖ the § 1160.8 process must run its course and cannot be bypassed].)31

.

IV. Related Issues Regarding Causes of Action Against the Board *
In the Board‘s demurrer to Garcia‘s complaint

- in

- intervention, it asserted as an additional ground for demurrer that Garcia‘s claims were untimely under the 30

- day deadline set forth in section 1164.5, subdivision (a). In relevant part, that section provides tha t a party to the MMC procedure may, ― [ w ] ithin 30 days after the order of the board takes effect‖ file a petition for writ of review in the appellate court. The trial court accepted the Board‘s argument and made the 30

- day deadline an alternative ground fo r its ruling sustaining the demurrer. We disagree with the Board and the trial court. Section 1164.5 describes the judicial review procedure for parties to the MMC process. Since Garcia was not a party to those proceedings, he could not avail himself of the
review mechanism set forth in section 1164.5. Accordingly, the timing provision set forth in that section was inapplicable to Garcia‘s claims. Another potential issue concerns the fact that the relief sought in the pleadings was declaratory relief. In their briefing on appeal, Gerawan and Garcia argue that even if section 1164.9 is not unconstitutional, it would still be permissible for them to seek declaratory relief in the trial court. They point to a number of cases allowing declaratory
relief as a vehicle to challenge the legal validity of an overarching policy of an agency where there was an actual and present controversy regarding the policy. (See e.g., K.G. v.
Meredith (2012) 204 Cal.App. 4th 164, 177; Californians for Native Salmon e tc. Assn. v. Department of Forestry (1990) 221 Cal.App.3d 1419, 1429 [―overarching, quasi

legislative policy set by an administrative agency‖ subject to review in an action for declaratory relief].) Referring to such precedents, Gerawan and Garcia emphasize that

t heir causes of action were not challenging a mere discretionary administrative decision or adjudication by the Board, but a broad and overarching quasi

- legislative policy that unconstitutionally denies all public access to MMC proceedings. Although the po licy is

* See f

ootnote, ante , page 1.32

.

reflected in the Board‘s no

- public

- access ruling, they argue the policy is broader and more pervasive than that one ruling because it will continue to have an ongoing effect on all future MMC proceedings and will prospectively defeat constitutional rights of public access by its erroneous misinterpr etation of constitutional law. In response to this line of argument, the Board insists that declaratory relief cannot slip through the net of section 1164.9, which, by its clear terms, bars all forms of r elief in the superior court challenging the Board‘s MMC decisions or rulings. Since none of the cases referred to by Gerawan and Garcia involved such an absolute jurisdictional ban, the Board argues they are distinguishable. The Board adds, in a brief fo otnote, that ― [ e ] ven if‖ section 1164.9 does not bar the filing of such actions in the superior court, the proper vehicle for challenging a decision of an administrative agency is by petition for writ of
mandate. We observe that nearly all of the discuss ion by the parties on this matter concerns the hypothetical question of whether a declaratory relief cause of action may proceed in the superior court even if section 1164.9 were upheld. We need not go down that road.
Since we have not upheld section 116 4.9, but have declared it to be unconstitutional, that section is removed from the picture and creates no impediment to the declaratory relief causes of action. Therefore, we refrain from addressing the abstract issues presented by the parties that are re ndered purely academic by our decis ion invaliding section 1164.9. As to the Board‘s perfunctory footnote that the proper means to challenge its decision was by petition for writ of mandate rather than declaratory relief, that point was not adequately raise d with sufficient legal discussion and , therefore , we disregard it and deem it forfeited for purposes of the instant appeal. ( Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App. 4th 466, 482; Nelson v. Avondale Homeowners
Assn . (2009) 1 72 Cal.App. 4th 857, 862; People v. Stanley (1995) 10 Cal. 4th 764, 793.) But even assuming for the sake of argument that the point was adequately raised, we would agree with Gerawan and Garcia that this case presents circumstances in which it33

.

was appropria te to pursue their challenge by means of a declaratory relief claim, whether or not a petition for writ of mandate might also have been maintained. The crux of the matter being challenged in the action below was not a discretionary administrative
decision or an application of existing regulatory law to particular facts or circumstances, but an overarching policy declaration premised upon an (allegedly) erroneous interpretation of constitutional law that will be carried out to deny public access rights in
f uture cases. In other words, it is not so much a particular contextual decision that is being placed at issue, but rather the broad policy that is reflected therein and will continue to be enforced. Under the circumstances, we believe that declaratory re lief claim was a proper vehicle to raise such claims. (See, e.g., Venice Town Council , Inc. v. City of Los Angeles (1996) 47 Cal.App. 4th 1547, 1565

– 1567 [although specific agency decisions on permit applications were involved, they were symptomatic of a b road policy that was contrary to law; therefore , declaratory relief permitted]; Clovis Unified School Dist. v. Chiang (2010) 188 Cal.App. 4th 794, 808

– 809 [declaratory relief directed to policy of administrative agency is not an unwarranted control of discr etionary agency decisions]; K.G. v. Meredith , supra , 204 Cal.App. 4th at p. 177; Califor nians for Native
Salmon e tc. Assn. v. Department of Forestry , supra , 221 Cal.App.3d at p. 1429 [―overarching, quasi

- legislative policy set by an administrative agency‖ i s subject to review in an action for declaratory relief].) 21
V. Causes of Action Against Individual s Sued in Official Capacities * Both the complaint by Gerawan and the complaint

- in

- intervention by Garcia
included causes of action under 42 U.S.C. section 1983 against the individual Board

21 We note further that, but for the trial court‘s mistaken belief that the entire action was jurisdictionally barred by section 1164.9, it might have reached this issue in the context of its demurrer ruling. Had that happened, even if the trial court agreed with the Board‘s position that a writ of mandate was the proper vehicle for this challenge of Board policy, we see no reason the trial court could not have granted leave to amend.

* See footnote, ante , page 1.34

.

members and the Board‘s executive secretary in their official capacities. 22 In relevant part, 42 U.S.C. section 1983 creates liability against every ―person‖ who, under color of state law, deprives another of ―rights ... secured by the Constitution.‖ The Board
demurred to the 42 U.S.C. section 1983 claims. In its demurrer to Gerawan‘s complaint, the Board argued there could be no liability under 42 U.S.C. section 1983 because in adopting the no

- public

- access ruling , the Board wa s performing a function comparable to a court and, as a result, its members were entitled to absolute judicial or quasi

- judic ial immunity. Although the trial court sustained the demurrer primarily on the juri sdictional ground under section 1164.9, the cou rt also stated in its tentative ruling (later confirmed as the court‘s order) that some form of absolute immunity would apparently apply to the
42 U.S.C. section 1983 claims, albeit the court characterized th e immunity as being legislative rather than judi cial immunity. In its subsequent demurrer to Garcia‘s complaint

- in

- intervention, the Board challenged the 42 U.S.C. section 1983 claims on a different ground than in the demurrer to Gerawan‘s complaint, even though the two pleadings were virtually identica l. The difference was this: In the later demurrer, the Board maintained that no 42 U.S.C.
section 1983 cause of action could be stated against the individu al officials because
neither a s tate nor its officials acting in their official capacities are ―per son [ s ] ‖ who can
be sued under 42 U.S.C. section 1983 (citing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 70

– 71). This shift in the Board‘s approach was evidently founded on a recognition that the 42 U.S.C. section 1983 causes of action name d the individual defendants solely in their official capacities. 23 The trial court fully agreed with the

22 The individual official s were expressly sued in their official capacities, and the allegations describing their conduct further reflect that was the case.
23 This shift may also explain why the Board no longer focused attention on personal immunity defenses. ―As long as the government entity receives notice and an opportunity to respond, an official

- capacity suit is, in all respects other than name, to be treated as a suit against the entity.‖ ( Kentucky v. Graham (1985) 473 U.S. 159, 166.) Generally speaking, ―[t]he on ly35

.

Board‘s position and sustained the demurrer to Garcia‘s 42 U

. S

. C . section 1983 claims on that ground. In their opening briefs on appeal relating to the ir 42 U.S.C. section 1983 claims, Gerawan and Garcia present argument to the effect that no absolute legislative immunity or absolute judicial immunity was available to the individual Board members or officials in this case. Among other things, they asser t that procedural safeguards were not present
to make the no

- public

- access decision functionally comparable to a judicial ruling, and that established rulemaking procedures were not followed to show that the action was functionally comparable to a legislat ive act. (See, e.g., Harlow v. Fitzgerald (1982) 457 U.S. 800, 810 [functional approach followed in questions of immunity].) The Board‘s respondent briefs make no response to this argument by Gerawan and Garcia, apparently abandoning the issue for p urpos es of the present appeal. Instead, the Board relies solely on its contention that state officials sued in their official capacities (as here) are not ―person [ s ] ‖ under 42 U.S.C. section 1983 and cannot be liable for damages under that statute. The Board‘s position is clearly correct. As the
U nited S tates Supreme Court held in Will v. Michigan Dept. of State Police , supra , 491
U.S. at page 71 : ―[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official‘s office. [Citation.] As such, it is no different from a suit against the State itself. [¶] ... [¶] We hold that neither a State nor its officials acting in their official capacities are ‘persons’ under [ 42 U.S.C. ] § 1983

. ‖ ( I talics added; see Hafer v. Melo (1991) 502 U.S. 21, 27 [same]; Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820, 829 [― states and state officers sued in their official capacity are not considered persons under [42 U.S.C.] section 1983 and are

immunities that can be claimed in an official

- capacity action are forms of sovereign immunity that the entity, qua entity, may possess ....‖ ( Id . at p. 167.) In personal capacity actions, personal immunity defenses apply, such as various forms of absolu te and qualified immunity. ( Id

. at pp. 166

– 167 ; see Pierce v. San Mateo County Sheriff’s Dept . (2014) 232 Cal.App.4th 995, 1018.)36

.

im mune from liability under the statute by virtue of the Eleventh Amendment and the doctrine of sovereign immunity‖]; Pierce v. San Mateo County Sheriff’s Dept ., supra , 232 Cal.App. 4th at pp. 1008

– 1019 [the rule is essentially one of statutory intent; i.e., in enacting 42 U.S.C. section 1983 , Congress sought to honor boundaries of the states‘ sovereign immunity].) Here, because the pleadings by Gerawan and Garcia reflect that
this is an official

- capacity case, the trial court correctly dismissed the 42 U.S.C

. section 1983 damage claims. (See Arizonans for Official English v. Arizona (1997) 520 U.S. 43, 69, fn. 24 [―State officers in their official capacities, like States themselves, are not amenable to suit for damages under [ 42 U.S.C. ] § 1983

. ‖].) However, as accurately noted by Gerawan in its reply b rief, an exception to the
above stated rule exists with respect to prospective injunctive relief

. F ootnote 10 in Will v. Michigan Dept. of State Police , supra , at 491 U.S. at p age 71 reaffirmed this limited

exc eption, which is sometimes referred to in the cases as the E x parte Young doctrine: ―Of course, a state official in his or her official capacity, when sued for injunctive relief, would be a person under [42 U.S.C. section] 1983 because  ̳official

- capacity actions for prospective relief are not treated as actions against the State.‘ [Citations.]‖ (See Va. Office f or Prot. & Advocacy v. Stewart (2011) 563 U.S. 247, 254 [explaining Ex parte Young exception]; Pennhurst State School & Hosp. v

. Halderman (1984) 465 U.S. 89,
101

– 103 [same]; Ex parte Young (1908) 209 U.S. 123, 159

– 160; see also Pierce v. San Mateo County Sheriff’s Dept ., supra , 232 Cal.App. 4th at p. 1009, fn. 4.) In this case, Gerawan and Garcia have each included a request for injunctive relief in their respective complaints. By this pleading request, they presumably will be able to seek an order or injunction directing compliance prospectively with federal constitutional law, which of course could only be issued in the event that the trial cour t concludes in the declaratory relief causes of action that public access is mandated under the federal C onstitution. 24

24 Obviously, any such injunctive relief would be dependent upon the trial court first concluding there is an ongoing violatio n of federal constitutional law concerning public access.37

.

Subject to that prerequisite for relief, we conclude that Gerawan and Garcia have adequately stated causes of action under 42 U.S.C. sec tion 1983 for prospective injunctive relief against the Board‘s officials in their official capacity. To summarize our disposition with respect to the 42 U.S.C. section 1983 causes of action, we affirm the trial court‘s ruling to the extent it eliminated a ny damage claims against the Board or its individual officials or members, but we reverse because a limited
basis for relief under 42 U.S.C. section 1983 exists for prospective injunctive relief against the individual officials or members in their official capacities.
VI. Summary of Reasons for Remand * In light of the trial court ‘s erroneous conclusion that section 1164.9 was a valid jurisdictional bar, it never reached the underlying question of whether the Board‘s no

public

- access policy violated rights of p ublic access protec ted under the federal or state
C onstitutions. Gerawan and Garcia have asked that we proceed to rule on the public access issue directly since it is ultimately an issue of law, even though the trial court has not yet heard or addressed t hat matter. We decline that request. Instead, we remand the matter to the trial court for further proceedings consistent with this opinion. We do so for
three reasons. First, in response to our request for supplemental briefing on the proper disposition of this matter in the event section 1164.9 was found to be unconstitutional, the Board asserted that remand for further proceedings in the trial court should be ordered
because , among other reasons , the Board would then have the opportunity to assert
proc edural and other defenses that, if successful, may defeat the causes of action without the necessity of reaching the constitutional issues. W e agree that the Board should be given that opportunity. (See Santa Clara County Local Transportation Authority v

. Additionally, to the extent there are other prerequisites to such injunctive relief, they also would have to be shown.

* See footnote, ante , page 1.38

.

Guardino (1995) 11 Cal. 4th 220, 230 [as a principle of ―  ̳ judicial self

- restraint, ‘ ‖ we do not reach constitutional questions unless absolutely required to do so to disp ose of the matter before us].) Second, as an appellate court, our task is ordinarily r eserved to correcting errors committed in the trial court, which we have done. ( Code Civ. Proc., § 906.; s ee, e.g., Leone v. Medical Board (2000) 22 Cal. 4th 660, 666; Sanborn v. Pacific Mut

. Life Ins. Co

. (1940) 42 Cal.App.2d 99, 10 5.) Third, assuming the trial court does ultimately address the merits of the constitutional questions raised in the declaratory relief causes of action, we believe a more fully developed record may be necessary or helpful to the trial court, and may be requested and obtained fr om the parties, including additional factual, historical and/or contextual information relating to the nature of the civil proceeding at issue. We say that because, in addressing whether a First Amendment right of public access applies to a particular pro ceeding, courts are to consider two factors: (1) t he historic tradition of public access or openness with respect to the type of proceedings at issue and (2) the utility or positive role of public access to the functioning of the particular process in
que stion. ( Press

- Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 8; NBC Subsidiary (KNBC

- TV), Inc. v
. Superior Court (1999) 20 Cal. 4th 1178, 1218

– 1219; Sorenson v. Superior Court (2013) 219 Cal.App. 4th 409, 430; In re Marriage of Burkle (2006) 135 Cal.Ap p. 4th 1045, 1054.) These factors and any relevant matters bearing upon them would have to be carefully evaluated in deciding whether a First Amendment access right exists with respect to the on

- the

- record phase of the MMC process. There may be a
similar need for a careful consideration of factors or other contextual information with respect to the other declaratory relief claims as well. For all of these reasons, we believe
it is best to remand the matter to the trial court.39

. DISPOSITION
T he judgments of the trial court are reversed. The matter s are remanded to the trial court for further proceedings consistent with this opinion. C osts on appeal are awarded to Garcia and Gerawan.

___________________________ KANE, J. WE CONCUR:

___________________________ HILL, P.J.

___________________________ LEVY, J.