Did the agency use correct procedures

Question 1

What are the 2 ways to attack a contested case in procedures?

Answer 1

1) Ex Parte Communications

2) Prejudgmnet

Question 2

Ex Part Communications for contested cases

Answer 2

any oral or written communication that is not on the public record

Question 3

Prejudgment for contested cases (aka bias, partiality)

Answer 3

generally disqualify decsion maker only for prejudgment of specific FACTS in controversy; preformed opinion on law or policy is acceptable

Question 4

examples when prejudgment (bias/ partiality) can be shown

Answer 4

1) if the decision maker has a personal FINANCIAL stake in outcome
2) if the decision maker has been the target of attack by a party
3) where the decision maker, in advance of the hearing, says something about the case in public that would tend to indicate that he/she has prejudged the FACTS

Question 5

What are the questions to ask for noncontested cases and procedural due process?

Answer 5

must be a life, liberty or property interest at stake

Question 6

what is property for procedural due process needed?

Answer 6

Property interest, to be constitutionally protected must be created by statue, CL or agency rule.
- watch our “for cause” language, this means that that some procedural due process needed

Question 7

What is liberty for due process needed?

Answer 7

there is some core content to the term liberty as used in due process clause, including for example, freedom to travel, engage in common occupation, marry and raise a family

Question 8

the 3 part balancing test

Answer 8

1) HARM to private party that would result from erroneous deprivation,
2) PUBLIC interest in using less formal decision making procedures (usually save $) and
3) the utility (in terms of improving accuracy of the decision) of the additional procedure.

Question 9

What are the requirements for rulemaking for procedural due process (notice and comment)

Answer 9

1) timing
2) content
3) comment
4) hearing
5) notice to Joint Committee on Administrative Rules (JCAR)
6) Filing

Question 10

What is the time period when an agency may not adopt a rule until after notice has been published in the Illinois Register?

Answer 10

45 days

Question 11

What content must be included in the notice?

Answer 11

notice MUST include

1) the TEXT of the proposed rule
2) any applicable STATUTORY citations
3) a description of the ISSUES involved;
4) descriptions of RESEARCH REPORTS used in developing the rule and
5) the time, place and manner for public COMMENT on the proposed rule

Question 12

when must an agency hold a public hearing for notice and comment rule making (2 things)

Answer 12

10 a hearing would facilite public comment on the proposal or
2) the agency receives sufficient number of requests for a hearing

Question 13

what can jacar do?

Answer 13

object or suggest changes to the proposed rule

Question 14

when must a rule be made effective after notice and comment rulemaking?

Answer 14

must be made effective w/i 1 year of the first notice period.

Question 15

When may notice and comment rule making not be used? (emergency rulemaking exception)

Answer 15

will only be valid for no more than 150 days.

• no emergency rule may be adopted more than 1 in any once month period.
• “the existence of any situation that any agency finds reasonably constitutes a threat to the PUBLIC INTEREST, SAFETY OR WELFARE

Question 16

what is the standard of proof in contested cases

Answer 16

preponderance of the evidence