C. Adjudication Flashcards
What are the due process requirements for the adjudicatory proceeding (hearing) of enacting the State Agency’s rule (if specified by statute)?*
1) Agency must provide party with hearing on record before impartial officer
- To be held ‘within reasonable time’
- Impartial officer must have powers to issue oaths + subpoenas
- OTHERWISE unreasonable agency delay => Dismissal of matter
2) Agency must give notice
- Time + Place + Nature of hearing
- Legal authority + jurisdiction for hearing
- Statute/Rule sections applicable for hearing
- Short, plain statement of matters asserted
- Interpreter services to be provided for deaf persons (NO charge)
- Reasonably specific to (1) apprise party of charges; and (2) allow for preparation of adequate defence
3) Agency must give opportunity to be heard
- Written argument on issues of law
- Evidence + argument on issues of fact
- Right of cross-examination
4) Record of adjudicatory proceeding
- Notices/Pleadings/Motions/Intermediate rulings
- Evidence presented
- Statement of matters officially noticed (NOT matters obvious NOT serving useful purpose)
- Qs + Offers of proof
- Proposed findings + exceptions
- Findings of facts + conclusions of law
- Decision/Determination/Opinion/Order/Report rendered
5) Final determination
- In writing
- Findings of fact/Conclusions of law (exclusively limited to Record)
- Reasons for decision
When may Discovery be required?*
- Agency seeks to revoke licence/permit previously granted
- Fair hearing may require access to complaints vs Party
- Freedom of Information Law allows obtaining record from Agency
What rules of evidence apply to hearings?*
Rules of privilege
- Attorney-client privilege
- Attorney work product privilege
NOT formal rules of evidence (CPLR)
- Hearsay evidence rules NOT applicable
Who does burden of proof apply to in hearings?*
Party who initiated proceedings
What rights apply to the party appearing at the hearing?*
Right to be accompanied
Right of representation
Right to counsel advice
- Right to be represented by attorney/other representative
When does Res Judicata/Collateral Estoppel apply?*
Quasi-judicial administrative determinations
NOT determinations involving nominal parties
NOT determinations involving NO full and fair opportunity to litigate material issue before Agency
What is required for Admin Agencies to issue subpoenas for investigations?*
1) Preliminary showing of info sought in subpoena that is reasonably related to proper subject of inquiry
2) Basis for inquisitorial action
Can Admin Agencies investigate private commercial properties without warrants?*
Generally NO (4A) - Warrant required
UNLESS for closely regulated businesses => NO warrant required
- Operation of business
- Conditions of premises
What is required for Admin Agencies to issue subpoenas for hearings?*
Statutory grant => Specific subpoena power to Agency
- Administrative law judge can issue subpoena
NO statutory grant => General subpoena power
- Agency attorneys can issue subpoena
What is Adjudicatory Proceeding?*
1) NOT rule-making proceeding/employee disciplinary action before agency
2) Determination of legal rights/duties/privileges of named parties is required by law
3) To be made on record + after hearing opportunity
What is the Ex Parte Communications Rule?*
Questions of fact
1) Agency members/employees assigned to render decision/make findings of fact and conclusions of law in adjudicatory proceeding
2) Shall NOT communicate (directly/indirectly) in connection with issues of fact with any person/party
Questions of Law
1) Agency members/employees
2) Shall communicate;
- With Agency members with Non-Party Agency members’ aid/advice
- NOT with any party (UNLESS upon Notice + Opportunity for ALL parties to participate)
What are the grounds for disqualification of Judicial Officers?*
- Judge is party/attorney/interested/related (up to second cousin degree) to parties in concerned proceeding
- Judge was former prosecutor in concerned proceeding
- Judge will make pre-judgment of facts
- Judge has financial interest in case outcome
What is the standard of proof expected in hearings?*
Whether actual finding is supported by kind of evidence on which reasonable persons are accustomed to rely in serious affairs
What are the types of administrative subpoenas?*
Subpoena Ad Testificandum
- Requires W to attend + testify at hearing
Subpoena Duces Tecum
- Requires Recipient to turn over material evidence
