NY BAR REVIEW - administrative law 2019

Question 1

separation of powers doctrine

Answer 1

legis CANNOT delegate its lawmaking power to admin agency

Question 2

legisl MAY endow admin agencies w power to what?

Answer 2

fill in gaps in legisl product by prescribing rules and regulations consistent w enabling legisl

Question 3

NO need for specific detailed legisl expression authorizing particular admin act, as long as what?

Answer 3

basic policy decision has been articulated by legisl , admin rule or regulation is NOT inconsistent w statutory language or underlying purpose and admin agency is NOT engaging in broad based policy determinations

Question 4

statutory procedures

Answer 4

STATE ADMIN PROCEDURE ACT

Question 5

agency rule / regulation MUST be enacted in substl compliance w what?

Answer 5

procedural requirements of SAPA

Question 6

prior to adoption of rule, agency MUST submit notice of proposed fule to what?

Answer 6

SEC OF STATE for publication in STATE REGISTER and afford the public an opportunity to submit written comments on proposed rule

Question 7

notice of proposed rule MUST include what?

Answer 7

sttmt of statutory authority for rule.
complete text of proposed rule.
if rule exceeds certain length, description of rule and website address where full text is posted.
regulatory impact sttmt and flexibility analysis.
date time and place of public hearings

Question 8

public hearing is NOT required before adoption of rule UNLESS what?

Answer 8

statute specifically requires a hearing

Question 9

rule is NOT effective until it is filed w whom?

Answer 9

SEC OF STATE and NOTICE OF ADOPTION is published in STATE REGISTER

Question 10

publication of rules

Answer 10

NY CODES RULE AND REGULATIONS

EXECUTIVE LAW

Question 11

what is NY CODES RULE AND REGULATIONS?

Answer 11

published compilation of rules and regulations of all state agencies

Question 12

if relevant enabling statute specifies hearing on record, SAPA demands what?

Answer 12

adjudicatory proceeding and all of procedures of art 3 are MANDATORY upon the agency

Question 13

agency MUST provide a party w a hearing on the record before whom?

Answer 13

an impartial officer having the power to administer oaths and issue subpoenas

Question 14

MUST keep a complete record of what?

Answer 14

proceeding and final determination MUST be in writing and include findings of fact and reasons for decision

Question 15

party to admin proceeding MUST be afforded what?

Answer 15

due process protections of 14th amm and NYS CONSTITUTION

Question 16

due process protections of 14th amm and NYS CONSTITUTION

Answer 16

short and plain sttmt of matters asserted.
opportunity for hearing within reasonable time.
reasonable notice of such hearing.
opportunity to present written argument on issues of law and evidence on issues of fact

Question 17

due process required for admin misconduct need only be what?

Answer 17

reasonably specific, in light of all relevant circumstances.
apprise party whose rights are being determined of charges ag them.
allow for prep of adequate defense.

Question 18

each agency may adopt rules for discovery and depositions how?

Answer 18

to extent and in manner appropriate to its proceedings and parties to proceedings are subject to these rules.

Question 19

hearing rules of evidence.
burden of proof.
right to counsel.

Answer 19

SAPA

Question 20

formal rules of evidence in CPLR apply or dont to admin hearings?

Answer 20

DONT.

but RULES OF PRIVILEGE do and party has right to cross.

Question 21

except as otherwise provided by statute, burden of proof is on whom?

Answer 21

party who initiates admin proceeding

Question 22

all persons appearing at hearing are accorded right to be

Answer 22

accompanied / represented / advised by counsel

Question 23

res judicata.

collateral estoppel effect.

Answer 23

applicable to quasi judicial admin determinations made pursuant to adjudicatory authority of agency employing procedures substly similar to those used in court of la

Question 24

where party is nominal party or did not have full and fair opportunity to litigate material issue before agency, then?

Answer 24

doctrines wont be applied

Question 25

admin agencies have power in furtherance of an investigation to issue what?

Answer 25

subpoenas to compel attendance of witnesses or production of evidence

Question 26

in order to justify subpoena issued in furtherance of investigation, agency must make what?

Answer 26

preliminary showing that info sought in subpoena is reasonably related to proper subject of inquiry and there is some basis for inquisitorial action.

Question 27

admin hearings conducted in course of investigatory proceeding MUST comply with what?

Answer 27

due process procedures set forth in CIVIL RIGHTS LAW

Question 28

admin inspections of private ocmmercial prop is prohibited by what?

Answer 28

4th amm prohibition ag warrantless searches and seizures

Question 29

exception for warrantless inspections of what?

Answer 29

closely regulated businesses

Question 30

officers presiding at admin hearing are authorized to issue subpoena at request of whom?

Answer 30

any party

Question 31

statutes governing adjudicatory proeedings before particular agencies may independently confer subpoena power and if theres a specific statutory grant, agency’s power to issue subpoena is derived solely from where?

Answer 31

such grant

Question 32

in absence of statutory grant of subpoena power, agencies and attys of record for any party to proeeding are granted what?

Answer 32

general subpoena power afforded courts and attys under CPLR.

Question 33

request to withdraw or modify a subpoena MUST first be made to whom?

Answer 33

person who issued it

Question 34

motions to quash or enforce admin subpoenas are NOT part of what?

Answer 34

hearing process and MUST be made in sup ct

Question 35

preconditions to judicial review

Answer 35

standing.
exhaustion of admin remedies.
ripeness.
finality.

Question 36

judicial review is available to persons who what?

Answer 36

have suffered an unfavorable admin decision and those that have a stake in outcome of admin process, but whose injury is less direct.

Question 37

2 step test for evaluating standing claims

Answer 37

party MUST show some harmful effect - whether economic or non economic AND interest sought to be protected MUST be arguably within the zone of interest to be protected by statute under which agency has acted.

Question 38

exhaustion of admin remedies

Answer 38

party MUST attempt to obtain whatever admin relief might be available before proceeding to cts.
major exceptions are agency actions that are challenged as unconstl or wholly beyond the agency’s grant of power.

Question 39

ripeness

Answer 39

if party to admin adjudication pursues all avenues of relief open within agency without satisfactory result, case is ripe for judicial review. pre enforcement review is available only if challenge is purely legal and further factual development wouldnt contribute to accurate resolution of controversy.

Question 40

finality

Answer 40

party MUST wait until all phases of agency adjudication are complete before judicial review can be held. interlocutory relief in nature of prohibition is rarely available and requires grave or irreparable harm. unless shorter time is provided in law authorizing proceeding, proceeding ag body / officer MUST be commenced within 4 months after determination to review becomes final and binding upon petitioner

Question 41

ART 78 of CPLR

Answer 41

judicial proceeding and procedure used to challenge agency determinations. SPECIAL PROCEEDINGS. subject to specific procedural requirements. actions for declaratory judgement are generally NOT subject to procedural strictures of ART 78 and are appropriate vehicles for challenging agency actions that CANNOT be reviewed by ART 78.

Question 42

court’s review of agency interpretation of the law is what?

Answer 42

limited

Question 43

admin agencies are entitled to ______ in matter of statutory interpretation of legislation governing agency and in issuing decisions within the agency’s own special expertise.

Answer 43

deference .

Question 44

what is the std of review?

Answer 44

whether an agency’s decision is supported by rational basis or was affected by error of law or was arbitrary and capricious or an abuse of discretion

Question 45

determination of fact made AFTER formal adjucatory hearing MUST be made on record as whole and be supported by what?

Answer 45

substl evidence

Question 46

substl evidence means what?

Answer 46

such relevant proof as a reasonable mind may accept as adequate to support a conclusion

Question 47

substl evidence is what

Answer 47

less than a preponderance of evidence or evidence beyond a reasonable doubt

Question 48

subsequent review is by whom?

Answer 48

APPELLATE DIVISION. and is confined to admin record.

Question 49

agency determinations involving findings of fact made without quasi judicial hearing required by statute or law are subject to what?

Answer 49

rational basis or arbitrary and capricious std of review.

Question 50

once ct determines rational basis exists for agency’s determination, its review is what?

Answer 50

ENDED

Question 51

agency’s discretionary acts and policy decisions may be set aside ONLY if what?

Answer 51

there is no rational basis for exercise of discretion or act complained of is arbitrary or capricious

Question 52

action is arbitrary and capricious if it is what?

Answer 52

taken without sound basis in reason or regard to the facts

Question 53

admin discipl penalties MAY be set aside ONLY if such punishment constitutes what?

Answer 53

an abuse of discretion

Question 54

penalty MUST be upheld UNLESS it is so disproportionate to the offense in light of all circumstances as to what?

Answer 54

shock one’s sense of fairness

Question 55

public disclosure laws

Answer 55

freedom of information law.

public officers law.

Question 56

define agency

Answer 56

any state or municipal dept., board, bureau, division, commission, committee, public authority, public corp., council, office, other govtl entity performing govtl or proprietary function for state or any one or more municipalities thereof except judiciary or state legisl.

Question 57

any state or municipal dept., board, bureau, division, commission, committee, public authority, public corp., council, office, other govtl entity performing govtl or proprietary function for state or any one or more municipalities thereof except judiciary or state legisl - MUST do what?

Answer 57

make available for public inspection and copying of all records, except those records of portions thereof that fall within certain enumerated exceptions

Question 58

which law specifies records that state legisl MUST make available for public inspection and copying?

Answer 58

public officers law

Question 59

access to govtl records under FOIL does NOT depend on what?

Answer 59

purpose for which records are sought

Question 60

open meetings law

Answer 60

public officers law

Question 61

open meetings law requires what?

Answer 61

public bodies, except judicial / quasi judicial proceedings and political committees, to conduct all portions of any meeting in venues open to general public on reasonable advance notice to public, UNLESS public body calls an executive session

Question 62

executive session MAY be called ONLY by what?

Answer 62

motion on majority vote of public body in public session and motion MUST identify general topics to be discussed in executive session.

Question 63

permitted topics include what?

Answer 63

discussion re proposed or pending litigation, matters involving law enforcement and criminal investigations, employment and personnel matters, and proposed acquisition of real property when publicity would affect property’s market value

Question 64

reporting and recordkeeping requirements of public officers law

Answer 64

minutes MUST be taken at ALL open meetings, INCLUDING executive sessions.
must INCLUDE all matters voted upon.
MUST be made available to public under FOIL.