D. Judicial Review

Question 1

What is required for judicial review?*

Answer 1

1) Standing
- Injury in fact: Harmful effect on Petitioner (economic/non-economic)
- Statutory zone of interest

2) Exhaustion of administrative remedies available
- UNLESS agency action is challenged as unconstitutional/wholly beyond Agency’s grant of power
- Party must preserve objections to Agency’s actions by raising those objections at Agency level => OTHERWISE objections waived for judicial review

3) Ripeness
- Party tried to pursue all avenues of relief open BUT received NO satisfactory result

4) Finality
- ALL phases of agency adjudication are complete

Question 2

When is a case Ripe for pre-enforcement review?*

Answer 2

• Challenge is purely legal

- Further factual development would NOT contribute to accurate resolution

Question 3

Is an interlocutory relief available?

Answer 3

Rarely

- Requires grave/irreparable harm

Question 4

When may proceedings against body/officer be commenced?*

Answer 4

Within 4 months after determination to review becomes final and binding

UNLESS law provides shorter time period

Question 5

What are the procedural bases for review of agency actions?*

Answer 5

Special proceedings (Art 78)

• Subject to specific procedural requirements (Art 78)
• Writs of Mandamus/Prohibition/Certiorari
• Commenced by petition

Declaratory judgments

• NOT subject to specific procedural requirements (Art 78)
• Challenges that can NOT be made under Art 78
• Requires Action + Answer under CPLR rules

Question 6

When may NY Administrative Agencies be entitled to deference of interpretation of law from courts?

Answer 6

Matters of statutory interpretation of law governing the Agency

Issuance of decisions within Agency’s own special expertise

Question 7

What is the standard for review of Agency’s interpretation of law?*

Answer 7

Whether interpretation was;

• Supported by rational basis
• Affected by error of law
• Arbitrary + capricious
• Abuse of discretion

Question 8

What is required for determinations of fact after formal adjudicatory hearing?*

Answer 8

After adjudicatory hearing

1) Made on record as whole
2) Supported by ‘substantial evidence’
- Reasonably acceptable as adequate to support conclusion
- NOT preponderance of evidence
- NOT evidence beyond reasonable doubt

NO adjudicatory hearing

• Rational basis for exercise of discretion must exist
• NOT arbitrary/capricious (‘taken without sound basis in reason/regard to the facts’)

Question 9

When may administrative disciplinary penalties be set aside?*

Answer 9

Penalty constitutes abuse of discretion

Penalty is so disproportionate to offence
- Shocks one’s sense of fairness

Question 10

When may Agency’s policy be set aside?*

Answer 10

NO rational basis for exercise of discretion exists

Arbitrary/capricious
- Taken without sound basis in reason/regard to the facts