Admin Law

Question 1

Contested Case

Answer 1

Def: Individual legal rights, duties, or privileges of a party are required by law to be determined by an agency (state or local) after opportunity for a hearing.

Procedural Safeguards

1) Right to present evidence
2) Knowledge of opposing evidence
3) Opportunity to test and rebut opposing evidence
4) Decision based solely on evidence produced at hearing

Question 2

Rulemaking

Answer 2

Def: Agency statement of general applicability that implements, applies, or prescribes law or policy

Exceptions:

1) Statements concerning only the internal management of agency
2) Declaratory rulings limited to specific set of facts
3) Intra-agency memos
4) Prescription of standardized forms
5) Actions taken to codify statutes

Question 3

Grounds for Judicial Review

Answer 3

1) Constitutional Review
2) Jurisdictional Review
3) Procedural Review
4) Merits Review

Question 4

Scope of Judicial Review

Answer 4

Constitutional Review?

• Substituted judgment
• No deference

Jurisdictional Review?

• Substituted judgment
• Some deference

Procedural Review

• Substituted judgment
• No deference

Merits Review?

• Contested Case:
  
  • Facts –> Substantial Evidence Test
  • Anything else –> Abuse of Discretion
• Rulemaking & Other Actions: Arbitary and capricious, an abuse of discretion

Question 5

Substantial Evidence Test

Answer 5

Is it reasonable in light of the whole record?

• More than a mere scintilla, but may be less than preponderance
• Such that a reasoning mind would conclude that the E was sufficient to support

Question 6

Abuse of Discretion

Answer 6

1) Did the agency consider any irrelevant factor?
2) Did the agency fail to consider any relevant factor?
3) Did the agency fail to plausibly explain any apparent inconsistency?

Question 7

General Principles

Answer 7

Review Page #9 of outline

1) Agency discretion – courts likely to remand
2) Lawfulness of agency action judged by actual chain of reasoning of decisionmaker
3) Agency must explain reasons for its decision
4) Actions unreasonably delayed
5) Preservation of issues
6) Appeal of judicial review – review the agency decision, not circuit court

Question 8

Procedural Due Process - Contested Cases

Answer 8

1) Ex Parte Communications
- After notice of hearing, agency employees shouldn’t communicate with parties

2) Prejudgment
- Generally disqualifies only for prejudgment of specific facts (preformed opinions - OK)
- Also includes: financial stake, decisonmaker has been the target of attacks by party
- One improperly interested member of tribunal makes entire action voidable

3) Standard of proof = preponderance

Question 9

Procedural Due Process - Noncontested cases

Answer 9

No mandatory proceedings. Organic act, agency rule, or PDP may mandate minimum safeguards.

Applicability of PDP: life, liberty (travel, occupations, family), or property (look for “for cause” language) interest at stake

Court weighs:

1) Harm to private party for erroneous deprivation
2) Gov’t interest in using less formal process
3) Utility of the additional procedure

Question 10

Procedural Due Process - Regular Rulemaking

Answer 10

Timing, Content, Comment, Hearing, JCAR, Filing

Timing: 45 days after notice is published

Content:

• Text of the proposed rule
• Applicable statutory citations
• Description of the issues
• Descriptions of research reports used
• TPM for public comment

Comment: Agency must accept and consider any data, views, arguments, and comments

Hearing: Must hold if it would facilitate comments or if agency receives enough requests

Notice to JCAR: May object or suggest changes

Filing: File with Sec. of State, must be effective within one year of first notice

Question 11

Procedural Due Process - Emergency Rulemaking

Answer 11

• May be filed without notice or hearing
• Valid no more than 150 days
• Can’t be adopted more than once in 24 month period
• “Threat to public interest, safety, or welfare”

Question 12

Open Meetings Act

Answer 12

Requires public notice of an access to meetings of state/local bodies of quorum of members is present.

Can be closed, by vote, for confidential subjects

Question 13

Commencing an action in Circuit Court

Answer 13

1) Proper Parties: Naming heads/directors of agencies is fine.
- Zoning board decisions for over 500K
- 35 days to add missing party

2) Time requirements (from service of decision)
- Filing: 35 days, jurisdictional
- Issuing summons: 35 days, may be relaxed

3) Service of Decision: Unless statute says otherwise, served when personally delivered or deposited in the mail.

Question 14

Service of Summons

Answer 14

Must be served on Ds by registered or certified mail

Good Faith Exception: 35 day req. can be relaxed if litigant made good faith effort

Question 15

Pleadings

Answer 15

Only Ps complaint and agency’s answer

Question 16

Exhaustion of Administrative Remedies

Answer 16

Contested case: Must use all the process that agency gives you

Rulemaking: In a DJA challenging validity of the agency, not required if

• agency could not provide adequate remedy
• only issues presented involve QoL; or
• requiring exhaustion would cause irreparable harm

Question 17

Ripeness

Answer 17

Courts balance the present fitness of the issues for judicial resolution against the hardship to the parties of delaying review.