Saturday, May 2, 2020

#123 / Exhaustion

As an environmental attorney, I am sometimes approached by persons concerned about proposed development projects of various kinds. When I am so approached, I am often asked to provide free legal and political advice, and I almost always tell inquirers that free advice is "worth every penny you pay for it." Usually, I don't have a lot to say in response to requests for free advice, for two different reasons. 

First, of course, as Abraham Lincoln may or may not have said, "an attorney's time and advice are his stock in trade." Attorneys are in the business of giving advice, and if they hope to be paid for that advice, it is not, generally, a good idea to give the advice away for free. 

Second, and much more important, as far as I am concerned, I worry a great deal that general comments I might make, giving free legal or political advice, will actually be bad advice, and steer people in the wrong direction if they rely on it. Almost always, to use that familiar phrase, the "devil is in the details," and general statements about the law, or what might be a wise thing to do, can be significantly in error, if an attorney gives advice without really knowing what the attorney is talking about, in terms of the details. 

So, I tell people who inquire, and ask for free advice, to hire an attorney to provide assistance, and to do it sooner rather than later. That is a piece of "free advice" I am willing to provide to everyone, as this blog posting makes clear. No charge to the reader!

Here is another piece of free legal advice that I am providing to anyone who might be able to make use of it: you need to exhaust your administrative remedies before filing a lawsuit, if you want to be successful. 

"Exhaustion" is what attorneys call participating in the decision-making process at the administrative level. The courts require that the plaintiff or petitioner must have "exhausted his or her administrative remedies" before challenging a decision in court. Relevant arguments must be raised at the administrative level. Relevant facts must be introduced into evidence at the administrative level, too. One reason you need to get that attorney on board "sooner rather than later" is to make sure that you do, in fact, fully exhaust your administrative remedies.

If anyone thinks that the courts are going to reverse bad policy decisions by local officials, and thus conclude that the right time to consider hiring an attorney is immediately following a bad decision by a City Council, or a Board of Supervisors, or some state or federal agency, such person will likely be very much disappointed by the results of any lawsuit filed. 

If we hope for positive results from our institutions of democratic self-government, we need to get involved ourselves. I am fond of saying that, in these daily blog postings I write, and otherwise. 

In the context of legal proceedings to challenge governmental decisions, that kind of personal involvement is an actual requirement, before a court will take action to reverse what may have been an illegal or otherwise challengeable governmental decision. We must, in other words, give our elected officials all our arguments, evidence, and advice before those officials take their action. If we do, and the officials do what we consider to be the wrong thing, then the courts will hear from us, and examine our objections, and the courts may rule in our favor. 

If we just show up in court, however, with arguments and objections we never made during the approval process, and tell the court that the elected officials did the wrong thing, it is almost always true that the court will not even review our objections. 

Why not? Because we did not "exhaust our administrative remedies." 

Unless citizens participate before the decisions are made to which they object, the courts are simply not going to consider their arguments. 

Participation in government can be exhausting. It takes a lot of energy, time, and often money. But if you don't exhaust your remedies in the administrative proceedings leading up to what you think is a bad governmental decision, you won't get much satisfaction in court. 

Exhaustion? You're saying that's a good thing?

You bet I am, and that's a piece of free legal advice that is worth a lot more than what you paid for it!

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