Administrative Law

Question 1

On what two things can an agency decision be based on?

Answer 1

Rulemaking or adjudication

Question 2

Is non-review-ability recognized in Kentucky?

Answer 2

No. All agency decisions are reviewable by the KY court.

Question 3

In what two instances is non-reviewability recognized in Federal law?

Answer 3

1) When statute precludes judicial review (must be obviously stated.)
2) CADL- committed to agency discretion by law.

Question 4

When is non-reviewability always able to be overcome in federal (or state) admin law?

Answer 4

When the agency decision is challenged as unconstitutional.

Question 5

In order to get review, what has to be done by the challenger?

Answer 5

Must be a final agency decision.
Must have exhausted administrative remedies.
Must have standing.
Must have ripeness.

Question 6

When do constitutional challenges require exhaustion? As applied or on its face?

Answer 6

As applied requires exhaustion. On its face does not.

Question 7

On a federal level, do jurisdictional challenges have to be exhausted?

Answer 7

Yes. They must be exhausted in order for the federal court to hear.

Question 8

In Kentucky, do jurisdictional challenges have to be exhausted?

Answer 8

There is no exhaustion required if it can be proven that exhaustion will cause irreparable injury.

Question 9

Is exhaustion required if there will be inadequate agency remedy?

Answer 9

Not necessarily, but it almost always is.
(KY court held that bias must be exhausted at the agency level, and has to be brought up at the agency level in order for the court to hear it.)

Question 10

What is required for standing?

Answer 10

Actual injury or threatened injury. If threatened, then can’t be too speculative.
Traceable to agency (Causation)
Must be redressable if the court reverses.
Has to be in the zone of interest–look at the statute and see if plaintiff is part of the protected class that is arguably protected by the statute.

All elements are required for standing!

Question 11

What is the test for ripeness?

Answer 11

3 part test:

1) Agency has made final decision.
2) Challenge involves only legal issues.
3) Postponement will cause hardship.

Question 12

What is ripeness?

Answer 12

An attempt to get review before the agency has actually enforced the decision. (Pre-enforcement judicial review.)

Question 13

What is primary jurisdiction?

Answer 13

When both a court and an agency have jurisdiction over a matter, but the court decides that the agency should hear the case first.

Question 14

What do courts consider when deciding primary jurisdiction?

Answer 14

Agency’s expertise–the more involved the expertise, the more the agency will be wanted to hear it.
Factual issues–if it’s more fact than law, then the agency will be more likely to hear it.
Adequate relief–which will be able to better provide relief?

This is often a balancing test to see who has jurisdiction.

Question 15

What constitutional challenges can be made?

Answer 15

Any const’l violation (1st, 5th, or 14th Amendment)
Separation of Powers
Unconstitutional delegation of power
Due Process

Question 16

Are the rules or decisions made by an agency valid?

Answer 16

Yes. The agencies have quasi-legislative and quasi-judicial powers.

Question 17

On a federal level, what standards are required in order to avoid an unconstitutional delegation of power?

Answer 17

Must have adequate statutory standards that limit the agency’s powers are required.
However, courts are very liberal in upholding broad delegations of powers.

Question 18

In Kentucky, what is required in order to prevent unconstitutional delegation of powers?

Answer 18

Broad statutory standards are upheld if there are “general safeguards” exist.

Question 19

What factors are considered in KY’s “general safeguards” standard?

Answer 19

Practical needs of the government.
Intelligible principle.
Prior agency experience.
Any clarifying regulations in place.

Question 20

What powers cannot be delegated to an agency?

Answer 20

Power of contempt (delegated to the court)
Power of imprisonment (delegated to the court)
Power to impeach (delegated to Congress)

Question 21

What is necessary for due process right to a hearing?

Answer 21

A liberty or property interest at stake and adequate facts.

Question 22

What is required by due process?

Answer 22

Adequate notice
Right to counsel
Right to present evidence
Right to cross examine
Right to a decision based on evidence.
A written decision with findings and reasoning.

Question 23

What is flexible due process?

Answer 23

A balance of private interest, adequacy of agency procedures, and government interest.

Question 24

With flexible due process, what are some things that can be affected?

Answer 24

The timing of the hearing–before or after the decision.

Modified procedures, such as cross examinations in writing, or the right to produce evidence just in writing.

Question 25

What are the 3 types of bias possible that would challenge an impartial decision maker?

Answer 25

Personal, Financial, and prejudgment.

Question 26

What are the standards for a prejudgment bias for a rulemaking issue?

Answer 26

Clear and convincing evidence of an un-alterably closed mind.
This standard is hard to prove.

Question 27

What are the standards for prejudgment bias for an adjudication issue?

Answer 27

Any prejudgment of the facts.

Much easier to prove than for rulemaking.