Administrative Law

Question 1

Ultra Vires Rule

Answer 1

Rules: Agencies must act within the scope of their enabling legislation; otherwise their actions are “ultra vires”

Question 2

Agencies: Statutory Interpretation

Answer 2

Rule: Agencies must be REASONABLE in interpreting their statutes

*Reasonableness a response to an ultra vires allegation

Question 3

Doctrine of delegation: Adequate safeguards

Answer 3

Rule: When the legislature delegates its power to an agency, it must provide ADEQUATE SAFEGUARDS.

It must:

1. define the SUBJECT MATTER of the power (what), and
2. provide an INTELLIGIBLE PRINCIPLE over when to use that power (when)

Question 4

Admin Criminal Penalties

Answer 4

Rule: Agencies may NOT impose criminal penalties.

Question 5

When may agency process be suspended?

Answer 5

Generally in an “emergency”

Rule: An agency’s processes may be suspended temporarily for GOOD CAUSE.

Test: ADEQUATE FACTUAL BASIS (not a rumor)

Question 6

How may an agency compel information?

Answer 6

Through its SUBPOENA POWER or through INSPECTION/SEARCH.

Concern: 4th Amend

Question 7

Requirements for an agency to issue a subpoena

Answer 7

1. Subpoena power must be authorized by law; and
2. Must be Constitutional

Constitutional if:
- Not too VAGUE
- Not IRRELEVANT
- Not UNDULY BURDENSOME
(heavy burden- challenges rarely successful)

Question 8

Inspection: Warrant Requirement

Answer 8

Rule: A warrant IS required for agency inspections.

The warrant must define the SCOPE of the search, and the agency must have a SYSTEMATIC PLAN for the search.

Question 9

Exceptions to the Agency Warrant requirement

Answer 9

An agency may conduct a warrantless inspection with:

1. Consent
2. Emergency
3. Plain View
4. Statutory Authorization
5. Heavily Regulated industry- Rule: AN agency may conduct a warrantless search of a commercial enterprise in a heavily regulated industry if :
   - –a. law authorizes
   - –b. gives notice
   - –c. defines scope of search

Question 10

Rule-Making Requirements

Answer 10

When issuing new rules, an agency must:

1. give ADEQUATE NOTICE (state register, authority, rule, time, place, and nature of proceedings)
2. Provide an OPPORTUNITY FOR COMMENT (at least written)
3. Publication of final rule at least 30 DAYS BEFORE effective date

Question 11

Bias in Agency Rule Making

Answer 11

Rule: Rulemakers must not have unalterably closed minds.

Question 12

Adjudication Requirements

Answer 12

1. Adequate Notice
2. Oral Hearing
3. Decision

*Licensing is adjudicative

Question 13

Adjudication: hearing requirements

Answer 13

The agency’s hearing must:

1. Include all necessary and proper parties
2. Have an impartial decision maker
3. Be based on preponderance of RELIABLE evidence
4. Be procedurally sufficient

Question 14

Decision-maker impartiality

Answer 14

1. Must be free from improper bias (no prejudgment or financial connection)
2. Cannot be both decision-maker and witness
3. Cannot both investigate and adjudicate a dispute

Question 15

Requirements of an adjudicative decision

Answer 15

An agency must issue a final written order containing a finding of facts and law, and the reason for the decision.

Question 16

Statutory notice requirement

Answer 16

Time and place, nature of hearing, factual and legal issues

• so that party can prepare a RESPONSE

Question 17

Constitutional Due Process (admin adjudication)

Answer 17

Applies when a life, liberty, or property interest involved (license = property)

Apply balancing test: government interest, private interest, and risk of error

Question 18

Standing Reqs for Judicial Review

Answer 18

1. Injury in fact (causation and redressability)

2. Party within the zone of interest- is the party someone the legislature intended to be affected by the law?

Question 19

When can a third party assert standing?

Answer 19

Third party standing:

• Injured party has difficulty asserting rights
• Close relationship b/w third party and injured party, OR
• Injured party lacks resources to sue

Question 20

Associational standing

Answer 20

An organization has standing to sue when:

• Individual members otherwise have standing in their own right
• Interest sought to protect related to assn’s purpose, AND
• Neither the claim nor relief must require participation of individual members (injunctive/declaratory)

Question 21

Exceptions to the Exhaustion Req

Answer 21

Rule: Parties must exhaust all administrative remedies before seeking judicial review.

Exceptions:

1. Futility or bias
2. Irreparable harm (rare)
3. The issue adjudicated is one of Constitutional law

Question 22

When is an issue RIPE for judicial review?

Answer 22

Rule: A matter is ripe for review only if:

1. the question presented to the court is LEGAL, and
2. there would be SUBSTANTIAL HARDSHIP to the petitioner if review were denied.

Question 23

Finality

Answer 23

Rule: Courts may only review FINAL agency action.

Most likely, if not exhausted or ripe, then not final.

Question 24

Standard for Judicial Review of Agency Rule-Making

Answer 24

Arbitrary and Capricious: The court will uphold the rule if the agency has a RATIONAL BASIS for its making.

Question 25

Standard for Judicial Review of Agency Adjudication

Answer 25

Substantial Evidence: Could a reasonably prudent reviewer reading the record reach the same result?

If there is NO record, apply arbitrary and capricious standard.

Question 26

Judicial deference to agency fact-finding

Answer 26

Courts are highly deferential to agency fact-finders, often giving res judicata effect. NOT de novo.

Question 27

Judicial deference to agency LEGAL findings

Answer 27

Rule: Courts will defer to a REASONABLE agency INTERPRETATION of the law, only if statutory language is AMBIGUOUS or NONEXISTENT.

However, if statutory language is CLEAR, courts will NOT defer (Chevron).

Question 28

Sunshine Rule

Answer 28

Agency proceedings and adjudications must be open the public.

Question 29

Ex Parte Rule- Adjudications

Answer 29

Ex parte communications on the merits must be placed on the record to be considered in decision.

Question 30

Residuum Rule

Answer 30

Some courts apply: Residuum of evidence must be competent (e.g., not hearsay, comport with rules of evidence)