At first glance, it might appear that the Court of Appeal in Mokler v. County of Orange, case no. G036029 (4th Dist. Nov. 26, 2007) did the unthinkable: hold that a defendant had waived a jurisdictional defect. Not so fast. The fact of the matter is that not all jurisdictional defects are created equally.
Mokler provides a fairly good discussion of the difference between acts in the absence of fundamental jurisdiction — that is, acting in the absence of power to preside over the case — and acts in excess of jurisdiction, in which a court that has fundamental jurisdiction violates a restriction on the manner in which it can act. I discussed this difference in an earlier post regarding the significance of the difference in terms of whether an act is void ab initio or merely voidable (with the latter subject to equitable limitations).
In Mokler, the distinction is relevant to another question: may the defense of failure to exhaust administrative remedies be raised for the first time on appeal? Citing to Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, which held that the exhaustion of administrative remedies is a jurisdictional requirement, the County contended it could raise the defense at any time.
True enough if exhaustion were a matter of fundamental jurisdiction, without which the trial court would have no power to act. But the court finds that exhaustion fits better into the “in excess of jurisdiction” category because it is subject to numerous fact-intensive exceptions, such as agency delay, futility, or the agency’s incapacity to grant an adequate remedy. Citing other Court of Appeal cases holding that the defense may be waived, it holds that a party may not raise exhaustion for the first time on appeal because it would be inequitable to raise the defense after forcing the plaintiff to litigate a case to conclusion.
I tend to agree with Tom Caso at The Opening Brief that this case may be headed for the Supreme Court. The importance of this issue to public entities around the state, the existence of at least a nominal split of authority on the issue (though one side of that split appears to lack much logical support), and the County’s contention that the Supreme Court’s holding in Campbell v. Regents of the University of California (2005) 35 Cal.4th 311 resolved the split, suggest that the Supremes may want to clarify the limits of its holding in Campbell and provide guidance for suits against public entities.