Judicial Review of Agency Adjudications

Question 1

Requirements for requesting judicial review of admin. adjudications

Answer 1

1. Must have standing–the following people/entities have standing:
   - party against whom agency action was brought, and
   - anyone else affected by the decision (e.g. neighbor challenging grant of a zoning variance nearby)
2. P has exhausted all available administrative remedies and agency has rendered a final decision

Question 2

Proper method of obtaining judicial review of an admin. proceeding and suitable grounds

Answer 2

1. Commencing an Art. 78 proceed.

Possible Grounds:

1. Agency failed to perform a duty required by law
2. agency is proceeding without or in excess of its jurisdiction
3. a petitioner is seeking review of a determination on the grounds that the determination (legal issues):
   a. was made in violation of a lawful procedure
   b. was affected by an error of law
   c. was arbitrary or capricious, OR
   d. an abuse of discretion
4. P is seeking review of determination after a hearing on grounds that determ. wasn’t supported by substantial evidence (evidentiary issues; principal vehicle)

Question 3

S/L for Art. 78’s and procedure

Answer 3

S/L: must be started within 4 mo. after an agency determination is final and binding on P

To commence, P files a petition and a notice of petition/order to show cause within 15 days (AFTER?) the S/L is scheduled to expire

-papers are more like a motion than a full-fledged action

Question 4

What papers need to be served for an Art. 78 ‘special proceeding’?

Answer 4

1. P files a verified petition accompanied by affidavits or other written proof (20 days)
2. a verified answer of the respondent (typically agency), stating pertinent and material facts showing the grounds of respondent’s action (including a certified transcript of the proceedings below) (5 days)
   AND
3. A reply, when a counterclaim is alleged, or ‘when there is new matter in the answer or when the accuracy of proceedings annexed to the answer is disputed’
   (1 day min)

**Usually the proceeding is determined on the papers filed with the court

Question 5

What are service (time) requirements for the papers?

Answer 5

Notice of petition, petition & accomp affidavits must be served at least 20 days before the time @ which petition is noticed to be heard, unless court orders otherwise.

Answer & supporting ffidavits: must be served at least 5 days before return date of the petition (motion date)

Reply: at least 1 day before

Question 6

Standard of review for Art. 78 proceedings

Answer 6

If challenged on grounds that agency’s determ. wasn’t based on subst. evidence, finding will be upheld if: there’s relevant proof that a reasonable mind would accept it as adequate to support a conclusion or ultimate fact

Question 7

Proper court & possible judgements for Art. 78 proceedings

Answer 7

Supreme Court

• if a substantial evidence Q isn’t raised, entire proceeding will be resolved by SUpreme Court.
• if it is, then SC must irst dispose of Qs that could terminate the proceeding (lack of jdx, S/L, res judicata) w/o reaching the substantial evidence issue.

For that evidence issue, it must be transferred to the appellate court division.

Judgmeents; court can annul, confirm, or modify agency determin. or it can remand proceedings to agency for reconsideration

Question 8

What governs agency’s rights to enter homes & businesses to inspect?

Answer 8

Fourth Amendment baby!

Question 9

How does 4th Am impact agency’s actions (in inspection & investigations)?

Answer 9

1. Warrant required, unless an exception to warrant req. applies (e.g. consent, exigent circumstances, or exception for heavily regulated businesses)–agency must obtain a warrant upon a showing of probable cause

Question 10

Standard for issuance of a warrant for administrative searches of commercial premises

Answer 10

Probable cause based on either

1) specific evidence of an existing violation OR
2) A showing that the specific business was chosen for an inspection on the basis of a general, administrative plan for the enforcement derived from neutral sources

Question 11

2 Exceptions to warrant requirement

Answer 11

Public Business premises: an agency official can enter business premises that are open to the public w/o consent or warrant and act upon their observations

HEAVILY REGULATED BUSINESSES
-warrantless ones allowed if they’re reasonable. found to be reasonable if:
1) the inspection is conducted according to a regulatory scheme that advances a substantial government interest AND
2)The inspection must be necessary to further the reg. scheme
AND
3) it must provide a const. adequate substitute for a search warrant by
a) advising the owners of the premises that it’ll be subject to periodic inspections AND
b) limiting inspecting officer’s discretion with time, place and scope restrictions

Question 12

Examples of heavily regulated businesses

Answer 12

• Automobile wrecking businesses
• mines
• firearms dealers
• liquor dealers

Question 13

Exclusionary rule re: these administrtive inspections

Answer 13

Exclusionary rule rarely applies. Generally admissible (even if unlawful search). to determine whether it should be excluded, courts balance the social benefits from excluding the evidence against (v.) the costs (loss of probative evidence)

-usually balance weighs in favor of admitting evidence

Question 14

What must agency show to be able to issue a subpoena in connection with an investigation?

Answer 14

1. authority to engage in the investigation
2. that evidence is reasonably related to investigation, and
3. authentic factual basis to warrant the investigation

Question 15

What must the agency establish if the investigation (that subpoena) is based on is in response to a third-party complaint?

Answer 15

1. The authenticity of the complaint by considering:
   a. The reliability of the complainant
   b. basis of the complainant’s knowledge, and
   c. authenticating details found in complaint

Question 16

Grounds on which a motion to quash a subpoena can be made

Answer 16

That:

1. the subpoena wasn’t validly issued
2. the issuing agency doesn’t have jurisdiction over matter being investigated (aka no statutory authority),
3. material sought is not relevant to investigation, or
4. the subpoena is burdensome or overbroad

Question 17

Requirements for meetings that are subject to the Open Meetings Law

Answer 17

1. Must be open to public (esp parts where they’re voting)–other than the portions of the mtg that qualify as an executive session
2. Notice should be given that includes:
   -what: time, place, and date of mtg
   -when: if meetings are scheduled a week or more in advance, must give at least 72 hours of notice. all other meetings: reasonable time before meeting
   -to news media & the public (including by posting notice on agency’s website
   where? posting it in 1 or more designated locations and when possible, online
3. Minutes of meetings should be taken and made avaialble to public within: 2 weeks after the meeting or 1 wk after executive session

Question 18

Public bodies whose meetings are subject to Open Meetings Law

Answer 18

Public body: governmental body that takes formal action by adopting resolutions and is subject to quorum requirements

Examples: city councils, town boards, village bouards of trustees, school boards, commissions, legislative bodies (and the committees and subcommittees consisting of members of those groups)

Question 19

What does the Open Meetings Law not apply to?

Answer 19

• Judicial or quasi-judicial proceedings, other than the public service commission and zoning boards
• meetings of political committees even if public business is discussed

Question 20

When is a meeting subject to the open meetings law?

Answer 20

1. If it’s held by a public body
2. A quorum is present AND
3. The public body is engaged in a deliberative process

*only applies to ‘official meetings’ (not chance meetings or social gatherings

Question 21

How is ‘a deliberative process’ defined re: open meetings?

Answer 21

A public body engages in a deliberative process:

When it discusses any matter upon which it may, or then later, take action

Question 22

How does a public body go about convening an executive session properly?

Answer 22

1. A member of the public body must make a motion to enter into an executive session
2. The motion must identify a general area of subject to be considered, AND
3. The motion must be carried by a majority vote of the total membership of a public body

Question 23

An executive session can only be conducted for the following matters (and what’s the one thing it can’t be conducted for)?

Answer 23

• matters that may imperil the public safety if disclosed
• matters that may disclose the identity of a cop or law enforcement informant
• info relating to current or future crim. investigations or prosecutions that would imperil effective prosecution if disclosed
• info regarding proposed or pending litigation
• collective bargaining negotitations pursuant to the civil service law
• medical, financial credit or employment history of a person/corp
• matters re: exams
• matters re: transactions involving a real property or securities if disclosure would affect its value

–No action may be taken during the executive session to appropriate public monies

-And minutes must still be taken of any action taken by formal vote (but dont have to include anything protected under Freedom of Info Law)

Question 24

Standing required to file an action for a violation of the Open Meetings law

Answer 24

any ‘aggrieved’ person can bring a lawsuit. A person can be aggrieved if improperly excluded from meeting or executive session was improperly convened (since mtgs are open to the general public)

Question 25

Remedies if Open Meetings Law is found to have been violating

Answer 25

Court can declare that action taken at meeting was void, except that an unintentional failure to fully comply w/ notice requirements isn’t sufficient grounds for declaring an action to be void

Question 26

When does the court award reasonable attorney fees to successful party re: Open Meetings lawsuit?

Answer 26

• ct can award it to successful party
• but court must award atty fees when public body:
• –voted in material violation of the law OR
• –substantial deliberations occurred in private that should have occurred in public

Question 27

Process for requesting records via FOIL : Freedom of Info Law

Answer 27

1. Person makes a written request for the record (record = info stored in any physical form (paper, e-data, video, audio recordings)
2. agency must respond within 5 business days, by either:
   a. providing material
   b. denying request, OR
   C. providing an approx date that request will be granted or denied
3. If possible, agency must provide record to person in the medium requested

Question 28

Which records are exempted from disclosure (FOIL)?

Answer 28

1. records, which if disclosed, would constitute an unwarranted invasion of a person’s privacy
2. records, which if disclosed, would hinder law enforcement efforts
3. records that would endanger the life and safety of any person
4. records that would jeopardize the agency’s ability to guarantee the security of its electronic info systems
5. inter- or intra-agency material that is predecisional (contains advice, opinion, or recommendations on how the agency proceeds in the matter), except portions of such materials consisting of stats or facts,

Question 29

Remedies for denial of access to records

Answer 29

1. Person denied access can appeal to agency in writing within 30 days of the denial
2. Agency must respond within 10 days by either explaining reason for denial or giving access to records
3. If agency appeal results in a denial of access, person may pursue Art. 78 proceedings for review of such denial

If denial is based on a claimed exemption, agency has burden of proving the record