I reluctantly concur in the judgment sustaining the trial court’s ruling denying a preliminary injunction to restrain enforcement of the 1984 legislation (Veh. Code, §§ 16028-16035) providing that a driver cited for a moving violation must provide proof that he has automobile liability insurance. When we granted review, we saw this case as raising two *1236significant constitutional issues: (1) whether the state, having effectively made automobile liability insurance compulsory, had a duty to assure that such insurance was available to all its drivers at reasonable and nondiscriminatory rates1; and (2) if so, whether the state’s statutory and administrative scheme fulfilled that duty. But a funny thing happened on the way to this forum. The state did not dispute its duty to assure that insurance was available to all on a fair and reasonable basis.2 Instead, it maintained that the California Automobile Assigned Risk Plan (CAARP) fulfilled that obligation. And plaintiffs, on their part, made no attempt to show that insurance was not available under CAARP on a fair and reasonable basis, and in response to our questions disclaimed any notion that affordability was something to be considered in assessing the reasonableness of insurance rates.
Instead, it turned out that plaintiffs’ attack on CAARP was based entirely on popular but mistaken notions concerning the assigned risk program. Plaintiffs assert that CAARP was intended only for drivers with bad records,3 when in fact it serves the broader purpose of making insurance available to anyone who, for any reason, cannot obtain private insurance at lower rates. They assume that, as persons with good driving records, they were mistakenly relegated to CAARP, and seek to challenge the decision which assigned them to that fate. In fact, there is no such decision; drivers turn to CAARP when they discover that private insurance is not available, or costs more than CAARP insurance. Finally, plaintiffs assume that their CAARP rates are unfairly high because they are calculated on the basis of a pool containing primarily drivers with bad records. But CAARP charges lower rates for drivers with good records. If the rate differential is inadequate, that issue can be raised in rate-making proceedings before the Insurance Commissioner (Commissioner) and on judicial review of those proceedings.
The failure of plaintiffs’ attack on CAARP dooms their request for a preliminary injunction, and requires us to affirm the ruling below. But that *1237outcome for the present appeal leaves a great many unanswered questions. Since this case remains subject to further proceedings in the trial court, and the matter is one of legislative and public concern, I think it appropriate to note some of those questions.
(1) Factual Background of this Litigation
This case arises from the attempt of the California Legislature to solve a serious social problem—the uninsured driver—without taking into account an equally serious problem—insurance pricing practices which make automobile liability insurance prohibitively expensive for many of the urban poor. The 1984 Legislature enacted Vehicle Code sections 16028 through 16035, which provide that whenever a driver is cited for a moving violation, he must provide proof of financial responsibility upon request of the citing officer. Violators are subject to a fine of $100 to $240 and penalty. The Department of Motor Vehicles (hereafter DMV or department) is notified of the conviction, and must suspend the violator’s driving privileges unless, within 60 days, he provides proof of financial responsibility. Although statutes provide alternative methods of demonstrating financial responsibility,4 the only practical method is purchase of an insurance policy with liability coverage equal to or greater than the statutory minimum.5
Since previous California law required proof of financial responsibility only after an accident, the new statute radically accelerated the enforcement of the financial responsibility requirements, increasing substantially the number of persons facing revocation of their licenses for noncompliance with those laws. Purchase of liability insurance became a necessity for all drivers, even those with no personal assets to protect.
But as insurance became essential, for many people it was also becoming more difficult to obtain. Private insurance companies were increasingly unwilling to sell liability coverage, at least at affordable rates, to residents of South Central Los Angeles and portions of Oakland.6 Often a resident of *1238those areas with a perfect driving record could obtain private coverage, if at all, only by paying more than a resident of some other areas with a history of accidents and violations.7 The 1984 legislation did nothing to correct this problem.
The individual plaintiffs here are seven residents of South Central Los Angeles. Each has submitted declarations in support of plaintiffs’ motion for a preliminary injunction; these declarations, collectively, explain the circumstances which gave rise to this action.8
Plaintiff Benita Hill, 28 years old, states that she is unable to work because of a medical condition (lupus) and must drive to medical appointments. She has never received a traffic ticket or been in an accident. Her monthly income is $485. When she sought private insurance, companies quoted annual rates of $1,050 to $1,400, far beyond what she could afford.
Plaintiff Lorene Dilworth, age 69, has had 1 accident, but no traffic tickets. She lives with her son V. La Val Dilworth, age 19, who has a completely clean driving record. He supports them both with a job paying $6.54 per hour. The California Automobile Association presented the best offer of any private insurance company, $2,634 cash or $3,030 on an installment basis to insure the Dilworths’ two cars.
Willie Henry, age 73, has had no tickets or accidents for the past 10 years. His income is under $500 per month. Most companies would not insure him because he had been driving without insurance until the present law went into effect. (One company offered coverage at $1,200.) He discovered he could obtain assigned risk coverage at $481 per year, but cannot afford it as this is equal to one month’s income.9
*1239Lawrence Wiley is retired on an income of $996 per month. He has had no tickets in the last five years and no accidents. He was unable to get private coverage, and will be forced to purchase an assigned risk policy at $648 to $731.
The declarations of other plaintiffs recite similar facts. They demonstrate that residents of South Central Los Angeles, even those with good driving records, have considerable difficulty obtaining private insurance coverage. When such coverage is available, the price quoted is very high, much higher than prices for other parts of the state, and often far beyond the means of the applicant. Thus applicants must resort to the assigned risk program, but those rates, while less than private rates, are still prohibitive to many applicants.10
Further evidence supports this conclusion. The ruling of the Commissioner on assigned risk rates, filed March 20, 1986, observes that “[f]or a variety of reasons, these are difficult times for some of the insurance companies with respect to the willingness to offer basic automobile liability insurance, particularly in the urban areas. Some agent appointments are being terminated, underwriting standards have been tightened, and some premium rates have increased.” Plaintiffs’ counsel submitted a declaration quoting Everett Brookhard, chief of the Consumer Affairs Division of the California Department of Insurance: “The biggest problem in South Central Los Angeles is the lack of a competitive market. The distribution system for insurance sales is not there, especially for the large direct sales companies such as Allstate, State Farm and Farmers insurance companies. While a number of companies may actually quote rates for South Central Los Angeles, many fewer of them were actually doing business there, that is writing policies for South Central Los Angeles residents. They might have rates, but there are no agents authorized to write the policies, nor are the distribution or claims systems there to service the customers. Additionally, even if they published rates, they often impose so many restrictions (e.g., no prior insurance precludes application), that the insurance quoted at those rates is inaccessible. A ‘high percentage’ of drivers in South Central Los Angeles are uninsured.”
Morris Davis, an insurance agent with offices in South Central Los Angeles, declared: “Currently, out of over 400 insurance companies doing business in California, I only know of approximately 10 who will write liability insurance policies through local agents and brokers for customers whose *1240vehicles are registered in south central Los Angeles. And, of these companies, virtually all are insurance companies denominated as ‘sub-standard.’ This means that these companies specifically write for customers who are perceived to be the greatest risk, that is, ‘sub-standard’ customers, and therefore these companies charge the highest rates. Customers residing in south central Los Angeles, especially in certain zip codes, are stigmatized as ‘sub-standard’ risks, even if they’ve had no moving violations and no accidents.”11
A number of exhibits verify that private insurance rates in South Central Los Angeles are two to three times as high as rates in other areas of the state, with the result that good driver rates in Los Angeles often exceed rates charged drivers with bad records in other areas.
Davis and others speak also of the reluctance of insurance companies to insure persons who were previously uninsured, a problem of particular concern since the purpose of the 1984 legislation was to compel such persons to obtain insurance. They speak also of the difficulty persons with assigned risk insurance experience in later obtaining private insurance.
(2) Regulation of Private Automobile Liability Insurance
Automobile liability insurance in California is provided primarily by a private, competitive, largely unregulated market. California has less regulation of insurance than any other state, and in California automobile liability insurance is less regulated than most other forms of insurance.
The principal regulatory law, the McBride-Grunsky Regulatory Act of 1947 (Ins. Code, § 1850 et seq.) enacts the minimal regulation required to exempt California insurance from federal antitrust law. It governs all forms of insurance including automobile liability insurance. The principal provision, section 1852, provides that “Rates shall not be excessive or inadequate, as herein defined, nor shall they be unfairly discriminatory. fl|] No rate shall be held to be excessive unless (1) such rate is unreasonably high for the insurance provided and (2) a reasonable degree of competition does not exist in the area with respect to the classification to which such rate is applicable.” No provision defines “unfairly discriminatory” rates. Subdivision (d) permits insurers to classify risks in accord with the probable effect on losses, utilizing “individual experience, location or dispersion of hazard, or any other reasonable considerations.”
*1241A person objecting to a rate or classification can complain to the insurer. (Ins. Code, § 1858.) If dissatisfied with the insurer’s action, he can request a hearing before the Commissioner. (Ibid.) If the Commissioner believes the complaint states probable cause to find a violation of section 1852, he may hold hearings (§§ 1858.1, 1858.2), render findings (§ 1858.3), and impose sanctions (§ 1858.4).12 His decisions are subject to judicial review. (Ins. Code, § 1858.6.)
Insurers do not file rates with the Commissioner, nor do rates require his approval. He is forbidden to set or fix rates. (Ins. Code, § 1850.) Rates come to his attention only when, sua sponte or in response to a complaint, the Commissioner requests such information from the insurer. The Commissioner asserts no authority over refusals to insure, and complaints charging that an insurer has unreasonably refused to insure are routinely rejected as raising an issue beyond the Commissioner’s jurisdiction.
The declarations on file in this action make it clear that South Central Los Angeles is not a competitive market. Consequently the Commissioner has authority to determine whether rates charged for that area are “unfairly discriminatory” or “unreasonably high.” (Ins. Code, § 1852.) Efforts to obtain such a determination, however, have failed. The Commissioner appears to assume that so long as a rate is actuarially sound it cannot be unfairly discriminatory or unreasonably high.13
The Commissioner’s assumption that an actuarially sound rate is necessarily a fair and reasonable rate is open to challenge. One can argue that it is unfairly discriminatory to use classifications which result in charging good drivers in some areas much more than bad drivers in others parts of the *1242state; it could be considered unreasonable to price liability insurance at levels many cannot afford. Rates which took affordability into account, and weighted driving record more than residence, would go far to alleviate the problem caused by the financial responsibility laws.14
The Commissioner’s practices, however, make it difficult for drivers to challenge this assumption. The Commissioner has issued no regulations, and published no decisions, stating explicitly how he or she determines whether a rate is reasonable and nondiscriminatory.15 Plaintiffs allege that complaints are routinely dismissed without hearing. And the fate of the City of Los Angeles’s suit shows that when hearings are held, the result may be a decision unsuitable for judicial review.16
*1243Apart from proceedings through the Insurance Commission, the California statutes provide a judicial remedy against discriminatory insurance practices. The Rosenthal-Robbins Auto Insurance Nondiscrimination Law (Ins. Code, § 11628 et seq.) prohibits a refusal to issue insurance on the same conditions as in other comparable cases for reasons of race, language, color, religion, national origin, ancestry, or “location within a geographic area.” This last phrase is defined, however, as “a portion of this state of not less than 20 square miles defined by description in their rating manual of an insurer. . . . Differentiation in rates between geographical areas shall not constitute unfair discrimination.” Thus the law has been interpreted to authorize territorial rate differentials, so long as rates are uniform within 20-square-mile blocks (See County of Los Angeles v. Farmers Ins. Exchange, supra, 132 Cal.App.3d 77, 84-85.) The result of the 20-square-mile provision is that insurers can draw lines which have the practical effect of discriminating between applicants on the basis of race.
In sum, the deficiencies in California legislation and administrative regulation are apparent. The present case, however, is not a very suitable one for examining these deficiencies. Plaintiffs have not sought relief from the Commissioner, and thus may encounter questions of exhaustion of remedies. Even apart from those questions, the absence of the Commissioner as a party litigant may deny the court precise information concerning the Commissioner’s policies and practices, and leave the court uncertain as to the reasons which he or she might advance in defense of those policies and practices. Finally, plaintiffs’ failure to include insurance companies as defendants limits judicial inquiry into whether insurers are charging unfair or discriminatory rates in violation of Insurance Code section 1852, or following practices which violate section 11628.
(3) The California Automobile Assigned Risk Plan
Insurance Code section 11620, provides simply that the Commissioner “shall approve or issue a reasonable plan for the equitable apportionment, among insurers admitted to transact liability insurance, of those applicants for automobile bodily injury and property damages liability insurance who are in good faith entitled to but unable to procure such insurance though ordinary methods.” Rates are set by the Commissioner after public hearing. Current rates are based on the driver’s age, sex, use of the car, and place of *1244residence. Drivers with good records receive a small reduction in rates; those with bad records a somewhat larger increase in rates.
Although assigned risk rates also use territorial classifications, the impact of such classifications is much less than in private rates. Assigned risk rates for South Central Los Angeles run about 15 percent above the average assigned risk rates. The record does not contain equally exact information about private rates, but comments in declarations and briefs suggest that the comparable figure for private rates would exceed 100 percent. It is clear that for many drivers in South Central Los Angeles, including many with clean driving records, assigned risk rates are substantially less than available private rates.17
The assigned risk program does overcome some of the objections to private insurance regulation: assigned risk rates are set by the state after public hearing, are available for public scrutiny, and subject to judicial review. It does not, however, eliminate the fundamental problems faced by residents of South Central Los Angeles. Assigned risk rates, like private rates, are established on a basis of weighing revenue against expected loss, with no consideration of affordability.18 There appears to be no sense that driving record should be entitled to greater weight, or residence to lesser weight, than the actuarial computations would indicate. As a result, assigned risk rates remain prohibitively high for many residents of urban areas. Such rates, however, are not properly subject to review in the present case, but should be challenged at the rate determination hearing before the Commissioner, or upon judicial review of his determination.19
*1245(4) Criminal and License Revocation Proceedings
Although the present decision upholds the facial validity of the 1984 financial responsibility legislation, it does not determine whether its criminal and revocation procedures can validly be applied to individual cases. If a defendant can show that insurance was not available to him upon a fair and reasonable basis, at rates he could afford, I would think he would have an arguable defense to any criminal proceeding. In In re Antazo (1970) 3 Cal.3d 100 [89 Cal.Rptr. 255, 473 P.2d 999], for example, we held it unconstitutional to imprison a person because he could not afford to pay a fine. The fact that the statute on its face did not discriminate against the poor (a rich man who refused to pay the fine would also go to jail), we said, did not foreclose a constitutional attack; the practical effect of the statute as applied was to discriminate on the basis of wealth. By the same reasoning, I would question whether the state can constitutionally fine a man because he cannot afford to buy insurance, especially if the reason he cannot afford insurance is that, because of his race and poverty, he lives in a part of the state where insurance rates are far higher than in more affluent areas.
The same concern arises in license revocation proceedings. In Rios v. Cozens (1972) 7 Cal.3d 792 [103 Cal.Rptr. 299, 499 P.2d 979], we observed that “ ‘[o]nce licenses are issued, . . . their continued possession may become essential in the pursuit of a livelihood.’ . . . [A] person deprived of the right to drive may forfeit his employment and suffer other disabilities.” (P. 796, quoting Bell v. Burson (1971) 402 U.S. 535, 539 [29 L.Ed.2d 90, 94, 91 S.Ct. 1586].) The impact of license revocation may be far more severe than a $100 to $240 fine. Realistically, the practical effect of revocation is probably to convert a licensed uninsured driver into an unlicensed uninsured driver. But if the driver again encounters the police, he faces conviction for driving with a revoked license, and a possible jail term.
(5) Conclusion
When it comes to automobile liability insurance, the poor pay more or do without. Private companies have been increasingly unwilling to insure residents of certain low-income urban neighborhoods, particularly South Central Los Angeles. Residents are forced to turn to the assigned risk program, paying rates much higher than available through private insurance to persons living in other areas. Those who cannot afford such rates drive without insurance.
This serious social problem has, with enactment of Vehicle Code section 16028, become a legal problem. That statute was intended to compel previously uninsured drivers to purchase insurance by threatening the violator *1246with fines and suspension of his driving privileges, yet it did nothing to ensure that insurance was available. Thus the poor no longer have the option of driving without insurance; to comply with the law, they must stop driving, whatever the consequences.
The state’s program for assuring the availability of insurance, however, has not kept pace with its financial responsibility laws. Certain problems are apparent: the failure to consider affordability in regulating private rates and setting assigned risk rates; the failure to consider the unfairness of charging a good driver higher rates because of the poor driving habits of his neighbors; the injustice of geographic boundaries which discriminate against the poor; the procedural deficiencies in the Commissioner’s office which make it virtually impossible for an individual to challenge the rates and terms offered him. The present case, however, is not a suitable one for resolving those issues. Plaintiffs have limited their attack to selected procedural issues, avoiding the question whether current private or CAARP rates are fair and reasonable. Nothing presented here would justify a conclusion that the 1984 financial responsibility law is facially unconstitutional. Thus on the record before us I concur with the majority that we should sustain the trial court’s ruling denying a preliminary injunction.
Mosk, J., concurred.
In Shavers v. Kelley (1978) 402 Mich. 554 [267 N.W.2d. 72], the Michigan Supreme Court held that “[m]otorists are constitutionally entitled to have . . . insurance made available on a fair and equitable basis.”
Every state which has enacted compulsory automobile insurance laws (whether liability insurance or no fault insurance) has also enacted procedures for review of private insurance rates, an assigned risk program, or both. Most states go further, requiring advance approval of insurance rates by an insurance commissioner or board, but there appear to be none which do not recognize the obligation to make sure that insurance is available to those required to possess it.
This claim, while plausible on its face, may be historically inaccurate. According to Cal. State Auto. etc. Bureau v. Downey (1950) 96 Cal.App.2d 876, 880-881 [216 P.2d 882], the impetus for the current assigned risk program was the refusal of insurance companies to insure small trucking companies regardless of their accident record.
The other forms of proof may be found in Vehicle Code sections 16053 (certificate of self insurance); 16054 (insurance policy or bond); 16054.2, subdivision (a) (cash deposit of $50,000 with the DMV). The certificate of self insurance can only be issued to fleet owners of more than 25 vehicles. (§ 16053, subd. (a).) The bond mentioned in section 16054, subdivision (a) is not in fact sold by any surety in the state. It is self-evident that a person who cannot afford to pay the several hundred dollars required for minimum liability insurance is equally unable to deposit $50,000 in cash with the DMV as required by section 16054.2, subdivision (a). Accordingly, purchase of an automobile insurance liability policy is, in fact, compulsory.
The minimum insurance currently required is $15,000" liability coverage per person injured, $50,000 per accident, and $5,000 for property damage. (Veh. Code, § 16056, subd. (a).)
The individual plaintiffs in the present case all reside in South Central Los Angeles, and the evidentiary record on which they base their motion for preliminary injunction refers to *1238that area. Statewide information on insurance rates, however, suggests that the problem of obtaining insurance at affordable rates exists in portions of Oakland, and probably in other low-income urban areas.
For discussion of a similar problem involving property insurance, see Note, Property Insurance and the American Ghetto: A Study in Social Irresponsibility (1971) 44 So. Cal.L.Rev. 218.
The declarations refer to insurance rates as of 1985; current rates are generally higher and the magnitude of the problem has, if anything, become worse. (See Dept. Ins. Auto Ins. Premium Survey (July 15, 1987).) The survey gave the example of a policy providing minimum coverage issued to a 45-year-old married couple with clean driving records. Such a policy would cost from $750 to $1,500 in South Central Los Angeles (an average of about $1,000). It would cost from $250 to $400 in San Diego, and from $150 to $300 in Redding.
As of 1985, $481 was the lowest assigned risk rate available for this territory. (Current rates are higher.) It applied to males over 25, or females over 21, who do not use their car to drive to work, and have a completely clean driving record. It is possible that some other plaintiff's could have obtained assigned risk policies for $481, far less than the private rates recited in their declarations.
Typically, assigned risk rates are much higher than private rates. The converse situation in South Central Los Angeles arises not because assigned risk rates are low for that region— to the contrary, that territory has the highest assigned risk rates—but because the territorial differences in assigned risk rates are much less than the territorial differences in private rates.
Davis explained that residents can obtain insurance in only three ways, assigned risk, “substandard companies,” and insurance by mail. The substandard companies charge more than assigned risk rates. Companies operating by mail “provide no service through agents or offices for acquiring insurance, servicing policies, or handling claims.”
As summarized in County of Los Angeles v. Farmers Ins. Exchange (1982) 132 Cal.App.3d 77, 87 [182 Cal.Rptr. 879]: “[T]he Commissioner has the power to take corrective action as he deems necessary and proper (Ins. Code, § 1858.3); he can impose a money penalty not to exceed $1,000 for each failure to comply up to a total penalty of and aggregating no more than $30,000 (Ins. Code, § 1858.3); he can issue an order specifying in what respects a violation exists and require compliance within a reasonable time thereafter (Ins. Code, § 1855.3, subds. (b) and (c)); and in addition to the other penalties provided, he may suspend or revoke, in whole or in part, the certificate of authority of an insurer with respect to the class or classes of insurance specified in such order which fails to comply within the time limited by such lawful order of the Commissioner pursuant to section 1858.3. (Ins. Code, § 1858.4.)”
Plaintiffs challenge the insurers’ claim that rates in South Central Los Angeles are actuarially sound, contending that so little private insurance is now sold in that area that the insurers’ accident and loss computations are not statistically reliable. Indeed, considering the disparity between private rates and assigned risk rates for that region, it is difficult to believe that both are actuarially sound. The question is one which would have to be tested by inquiry into the rates at a trial on the merits. At this stage of the litigation, however, plaintiffs have presented insufficient evidence for us to conclude that the insurers’ rates lack actuarial justification.
The fact that current territorial rates may be actuarially justified does not mean that a rate which placed less weight on residence would be unsound, or would be unfair to residents of low-risk territories. As explained by the United States Supreme Court, discussing a company requirement that women pay more into a retirement program because they live longer as a class, “when insurance risks are grouped, the better risks always subsidize the poorer risks. Healthy persons subsidize medical benefits for the less healthy; unmarried workers subsidize the pensions of married workers; persons who eat, drink, or smoke to excess may subsidize pension profits for persons whose habits are more temperate. Treating different classes of risks as though they were the same for purposes of group insurance is a common practice that has never been considered inherently unfair. To insure the flabby and the fit as though they were equivalent risks may be more common than treating men and women alike; but nothing more than habit makes one ‘subsidy’ seem less fair than the other.” (Los Angeles Dept. of Water & Power v. Manhart (1978) 435 U.S. 702, 710, fns. omitted [55 L.Ed.2d 657, 666-667, 98 S.Ct. 1370].)
In Shavers v. Kelley, supra, 267 N.W.2d 72, the Michigan Supreme Court found state regulation of automobile insurance rates constitutionally inadequate, in part because “[t]he statutory structure against ‘excessive, inadequate or unfairly discriminatory’ rates is without the support of clarifying rules established by the Commissioner, with legislatively sufficient definition, and without any history of prior court interpretation.” (P. 88.)
In 1978 the County of Los Angeles filed a complaint with the Insurance Commission, charging two insurers with 20 specified unlawful practices relating to territorial classifications. The Commissioner conducted public hearings and reached the following conclusions:
“2. That the use of territorial classification does constitute a reasonable and credible rating criterion, but that this finding should not be considered a blanket approval of the territorial classification presently used by the insurance industry. ‘[Cjoncems expressed by many individuals who wrote to the Commissioners or testified at the hearings to express their sincere and honest bewilderment about the fact that such costs appear to fall more heavily upon those least able to pay are clearly well deserving of further consideration by the' Department to identify these perceived inequities’;
“3. That the methodologies used to develop geographical rates reasonably achieve the goals intended and therefore are actuarially valid.” (County of Los Angeles v. Farmers Ins. Exchange, supra, 132 Cal.App.3d 77, 84-85, summarizing the Commissioner’s “Findings and Recommendations” filed Dec. 20, 1979.)
The county then filed suit against the insurers and the Commissioner. The trial court upheld demurrers, with leave to amend as to the Commissioner but without leave to amend as to the insurers. On appeal from the latter ruling, the Court of Appeal held that the county had failed to exhaust its administrative remedies because it had not insisted that the Commis*1243sioner render findings on the specific unlawful practices alleged in the original complaint. (132 Cal.App.3d 77, 87.)
We have not been informed about any further developments in this suit. And despite the reservations in the Commissioner’s 1979 decision, the Commissioner has done little or nothing to curb pricing polices which “fall more heavily on those least able to pay.”
Plaintiffs assert that a person insured under the program is often rejected or charged higher rates by private companies when he seeks additional insurance (collision or comprehensive coverage, or liability coverage above the minimum). He may also be subject to discrimination when he later tries to leave the program and obtain private coverage. The Commissioner has taken note of this discrimination, but true to the philosophy that nothing is unfair which is actuarially sound, he has ordered the insurers only to desist from discrimination if they cannot show actuarial justification.
In 1985 the insurers requested an increase in assigned risk rates of 60 percent. The Commissioner granted only a 20 percent increase. His opinion, however, makes no mention of affordability, but rejects the insurers’ proposal because it did not take account of investment income.
Amicus Consumers Union did appear at the hearing to set the rates which took effect in January of 1987. It complains that while it was permitted to put on its evidence, it was not permitted to participate as a party and to cross-examine the insurers’ witnesses. Consumers Union further claims that the Commissioner’s decision simply stated the alternatives and adopted one of them, without considering Consumers Union’s contentions—a format which impedes judicial review. The complaints sound very much like those plaintiffs raise about Commissioner action under section 1852.