Issue 5: Have all conditions on obtaining judicial review been satisfied? Flashcards
when must an action to review a final administrative decision be commenced by filing a complaint and issuing a summons w/i how many days?
35 days from the date that the copy of the decision was served on the part affected by it.
Special rules for zoning board in large cities
for zoning board decision in counties of more than 500,000 people, “parties of record (those who must be included as D) include only
1) the zoning board of appeals or hearing officer and
2) applicants before the board or officer
(people who testified at it)
Time requirements for filing a complaint
the 35 day period for filing a complaint is a jurisdictional requirement, not a SOL and therefore it CANNOT BE WAIVED
time requirements for issuing a summons
in contrast the 35 days period for issuing a summons is no jurisdictional, and thus MAY BE RELAXED in some circumstances
Good Faith exception for service of summons
because the 35 day period for issuing a summons is in place to avoid undue delay, the requirement may be relaxed where the litigant makes a GOOD FAITH effort to issue summons w/i statutory period.
How to service of summons on an agency?
generally summons must be served on the agency and each of the other defendants by registered or certified mail
Timing of judicial action in contested cases (exhaustion of administrative remedies
in contested cases, before seeking court intervention, private parties must give agency fullest possible opportunity to correct its own mistakes; that is you MUST use all the process that the agency gives you
when is exhaustation of remedies in rulemaking not needed?
in a declaratory judgment action challenging the validity of an agency, exhaustion is not required if
1) the agency could not provide adequate REMEDY
2) the only issues presented involve questions of LAW (including constitutional questions); or
3) if requiring exhaustion might cause irreparable INJURY
Ripeness in rule making
courts decide ripeness questions by BALANCING
1) the present FITNESS of the issues for judicial resolution against
2) HARDSHIP to the parties of delaying review
When is a decision considered serve on for a party?
either
1) personally delivered OR
2) deposited in United States mail in a sealed, postage prepaid envelope addressed to the party.
How to correctly name an agency as a Defendant for complaint for administrative review?
1) name the Director or Agency head in his official capacity is effective to name the agency.
does a complaint bad because it fails to name members of an agency where the agency itself was properly named?
NO. a complaint is not deficient b/c it fails to name members of an agency where the agency itself is properly named.
what happens if the court determines that the complaint failed to name a necessary party for administrative review?
It should not dismiss the complaint. It should grant complaint a 35-day extension to name and serve the missing party.
