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NY BAR REVIEW > NY BAR REVIEW ADMINISTRATIVE LAW COURSE > Flashcards

NY BAR REVIEW ADMINISTRATIVE LAW COURSE Flashcards

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1
Q

separation of powers doctrine

A

legislature cannot delegate lawmaking power to admin agency, but they may endow admin agencies with power to fillin gaps in legislative product by prescribing rules and regulations consistent with the enabling legislation

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2
Q

if basic policy decision has been articulated by legislature and administrative rule or regulation is consistent with the statutory language / underlying purpose and administrative agency isnt engaging in broad based policy determinations, then

A

no need for a specific and detailed legislative expression authorizing a particular administrative act

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3
Q

SAPA

A

state administrative procedure act

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4
Q

agency rule / regulation must be enacted in substantial compliance with

A

procedural requirements of SAPA

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5
Q

Prior to adopting a rule,agency must:

A
  1. submit notice of proposed rule to sec of state for publication in state register
  2. afford the public an opportunity to submit written comments
    3.
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6
Q

notice must include:

A
  1. statement of statutory authority for the rule
  2. complete text of proposed rule
  3. regulatory impact statement
  4. flexibility analysis
  5. date, time, place of public hearings
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7
Q

if rule exceeds certain length,

A

description of rule and website address where full text is posted

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8
Q

public hearing is NOT required if

A

statute doesnt specifically require it - prior to adoption of new rule

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9
Q

where are the rules published?

A

NY CODES, RULES, AND REGULATIONS
NYCRR
Executive Law, Section 102, 5

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10
Q

what is the NYCRR

A

a published compilation of the rules and regulations of all state agencies

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11
Q

if a statute specifies a hearing on the record, SAPA demands

A

mandatory adjudicatory proceeding and all procedures of article 3

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12
Q

agency must provide a party with

A

a hearing on the record before an impartial officer, having the power to administer oaths and issue subpoenas

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13
Q

an impartial officer has the power to

A

administer oaths and issue subpoenas

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14
Q

final determination must be in

A

writing and include findings of fact and reasons for decision

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15
Q

a party to an administrative proceeding must be afforded

A

due process protections of 14th amm and NYS Constitution

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16
Q

due process requirement means plainly

A

a short and plain sttmt of matters asserted, opportunity for hearing within a reasonable time, reasonable notice of the hearing, and an opportunity to present written argument on issues of law and evidence on issues of fact

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17
Q

specificity requirements exist in what type of proceeding?

A

criminal

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18
Q

due process required for administrative misconduct need be

A

reasonably specific, in light of all relevant circumstances, to apprise party whose rights are being determined of the charges against him/her and to allow for preparation of an adequate defense
BLOCK V. AMBACH NY 2D, 1989.

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19
Q

parties to proceedings are subject to which rules?

A

discovery and deposition

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20
Q

do the formal rules of evidence in the CPLR apply to administrative hearings?

A

NO

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21
Q

what type of rules of evidence apply to administrative hearings?

A

rules of privilege,
party has right to cross examine, burden of proof on party who initiates administrative proceeding, accorded the right to be accompanied/ represented and advised by counsel

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22
Q

res judicata and collateral estoppel are generally applicable to what?

A

quasi judicial administrative determinations made pursuant to adjudicatory authority of agency employing procedures substantially similar to those used in court of law

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23
Q

where a party is a nominal party or did not have a full and fair opportunity to litigate material issue before the agency, which doctrines do not apply?

A

res judicata and collateral estoppel

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24
Q

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

A

subpoena to compel witness attendance or evidence production

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25
Q

issuing a subpoena

A
  1. make a preliminary showing that the info sought in the subpoena is reasonably related to proper subject of inquiry.
  2. there is some basis for inquisitorial action.
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26
Q

administrative hearings in course of investigatory proceeding must comply with what?

A

due process in CIVIL RIGHTS LAW section 73

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27
Q

private commercial property is prohibited from what?

A

being administratively inspected

4th amm

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28
Q

4th amm

A

prohibition of warrantless searches and seizures

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29
Q

closely regulated businesses are allowed to be inspected by?

A

warrantless administrative inspections

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30
Q

subpoena can be issued by an officer presiding at an administrative hearing based on who’s request?

A

any party

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31
Q

statutory subpoena power/grant

A

independently conferred

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32
Q

in the absence of statutory grant of subpoena power, agencies and and attys of record are afforded what?

A

general subpoena power CPLR 2302

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33
Q

request to withdraw / modify subpoena must first be made to whom?

A

the person who issued it

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34
Q

motions to quash or enforce administrative subpoenas must be made where?

A

in supreme court

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35
Q

motions to quash or enforce administrative subpoenas are NOT what?

A

part of the hearing process

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36
Q

what are the preconditions to judicial review?

A
  1. standing
  2. exhaustion of administrative remedies
  3. ripeness
  4. finality
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37
Q

standing

A

suffered an unfavorable administrative decision and has a stake in outcome of admin process whose injury is less direct

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38
Q

for standing, one MUST show

A

harmful effect economic or not, AND interest MUST be within the zone of interest to be protected by statute under which agency acted

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39
Q

exhaustion of administrative remedies

A

one MUST attempt to obtain whatever admin relief might be available before proceeding to courts

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40
Q

exception to exhaustion of administrative remedies is

A
  1. constitutional challenges

2. actions that are wholly beyond the agency’s grant of power.

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41
Q

ripeness is when

A

a party to an admin adjudication pursues all avenues of relief open within the agency without a satisfactory result

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42
Q

when is pre-enforcement review available?

A

when challenge is purely legal and further factual development wouldnt contribute to accurate resolution of controversy

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43
Q

judicial review can be had once

A

all phases of agency adjudication are complete

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44
Q

a proceeding against a body or officer must be commenced within ____ months after determination to review becomes final and binding upon the petitioner

A

FOUR 4

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45
Q

ARTICLE 78 of CPLR

A

SPECIAL judicial proceeding and procedure to challenge agency determinations

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46
Q

actions for declaratory judgment CPLR 3001 are

A

NOT subject to procedural strictures of ART 78 and are appropriate for challenging agency actions that cant be reviewed by ART 78

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47
Q

deference

A

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

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48
Q

what is the standard of review for an agency’s decision

A
  1. whether it was supported by a rational basis.
  2. whether it was affected by an error of law
  3. whether it was arbitrary and capricious
  4. whether it was an abuse of discretion
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49
Q

determinations of fact after a formal adjudicatory hearing MUST be what?

A

made on the record as a whole and be supported by substantial evidence

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50
Q

substantial evidence is

A

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

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51
Q

substantial evidence is LESS than

A

a preponderance of the evidence or evidence beyond a reasonable doubt

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52
Q

subsequent review is conducted by which division?

A

appellate

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53
Q

subsequent review is confined to what?

A

the administrative record

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54
Q

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

A

rational basis or arbitrary and capricious standard of review

55
Q

what happens upon the court determining a rational basis exists for an agency’s determination?

A

review is ENDED

56
Q

set aside agency’s discretionary acts and policy decisions when?

A

if theres NO rational basis for exercise of discretion or act complained of is arbitrary or capricious

57
Q

taken without sound basis in reason or regard to the facts is what?

A

arbitrary and capricious

58
Q

set aside administrative penalties only IF

A

such punishment constitutes abuse of discretion.

59
Q

penalty MUST be upheld UNLESS

A

it is so disproportionate to the offense in light of all circumstances as to shock one’s sense of fairness

60
Q

agency is

A

state, municipal dept, board, bureau, division, commission, committe, public authority, public corp., council, office, other govtl entity performing govtl or proprietary function for state or municipality, EXCEPT judiciary or state legislature

61
Q

freedom of information law / public officers law

A

agencies MUST make available for public inspection and copying ALL records, except those that fall within certain enumerated exceptions

62
Q

does access to govtl records under FOIL depend on purpose for which the records are sought?

A

NO

63
Q

open meetings law / public officers law

A

public bodies, EXCLUDING judicial or quasi judicial proceedings and political meetings, are required to conduct all portions of any meetings in venues open to general public on reasonable advance notice to public

64
Q

executive session

A

public bodies, EXCLUDING judicial or quasi judicial proceedings and political meetings, are NOT required to conduct all portions of any meetings in venues open to general public on reasonable advance notice to public

65
Q

who may call an executive session

A

a motion on majority vote of public body in public session which identifies general topics to be discussed, including re: proposed or pending litigation, law enforcement matter, criminal investigation, employment and personal matters, and proposed acquisition of real property when publicity would affect property’s market value

66
Q

reporting and recordkeeping requirements / public officers law

A

minutes MUST be taken at open meetings and executive sessions and MUST include matters voted upon and MUST be available to the public under FOIL.

67
Q

under separation of powers doctrine, legislature cannot delegate what?

A

its lawmaking power to an administrative agency

68
Q

the legislature may endow administrative agencies with what?

A

power to fill in gaps in leg product by prescribing rules and regulations consistent w enabling legislation

69
Q

no need for a specific and detailed leg expression authorizing particular admin act, as long as what?

A

basic policy decision has been articulated by leg, admin rule or regultation is not insconsistent w statutory language or its underlying purpose and admin agency is NOT engaging in broad based policy detrminations

70
Q

statutory procedures - which law?

A

state administrative procedure act

71
Q

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

A

procedural requirements of SAPA

72
Q

prior to adoption of rule, agency MUST do what?

A

submit notice of proposed rule to sec of stte for pulication in state register.
afford public opportunity to submit written comments on proposed rule.

73
Q

notice MUST include what?

A

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 / place of public hearings.

74
Q

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

A

statute SPECIFIALLY requires hearing

75
Q

rule is NOT effective until it is what?

A

filed w sec of stte .
notice of adoption is published in state register.
EXCEPT for emergency rules and other specified rules.

76
Q

notice of adoption MUST contain what?

A

info similar to that required in notice of proposed rule.
effective date of rule.
assessment of public comments received.

77
Q

NYCRR

A

new york codes, rules, regulations.

published compilation of rules and regulations of all state agencies.

78
Q

what is an adjudicatory proceeding?

A

any activity, other than rule making or employee discipline in which determination is required by law to be made only on record after hearing.

79
Q

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

A

an adjudicatory proceeding and all of procedure of art 3 are mandatory upon agency

80
Q

agency MUST provide party with what, prior to impartial officer having power to administer oaths and issue subpoenas?

A

hearing on record

81
Q

MUST keep complete what?

A

record of proceeding

82
Q

final determination MUST be how?

A

in writing and include findings of fact and reasons for decision

83
Q

party to admin proceeding MUST be afforded what?

A

due process protections of 14th amm and NYS CONST.
short plain sttmt of matters asserted.
opportunity for hearing w/in reasonable time.
reasonable notice of hearing.
opportunity to present written argument on issues of law and evidence on issues of fact.

84
Q

not all elements of due process required for criminal proceeding are required for admin adjudicatory proceeding, such as?

A

unlike specificity requirements of indictment in criminal proceeding, due process required in admin proceeding for charge of misconduct is that the charge need only be reasonably specific,
in light of all relevant circumstances,
to apprise party whose rts are being determined of charges ag him,
to allow for preparation of adequate defense.

85
Q

each agency may adopt rules for what?

A

discovery and depositions.

to extent and in manner appropriate to proceedings, and parties to proceeding are subject to rules.

86
Q

formal rules of evide in CPLR apply to admin hearings?

A

NO

87
Q

which rule of evidence apply to admin hearings?

A

rules of privilege

88
Q

party has rt to what during admin hearings?

A

cross examination

89
Q

burden of proof is on who in admin hearings?

A

party who initiates the proceeding

90
Q

all persons appearing at hearing are accorded rt to what?

A

rt to be accompanied
represented
advised
BY COUNSEL

91
Q

res judicata and collateral estoppel are doctrines that are generally applicable to what?

A

quasi judicial administrative determinations made pursuant to adjudicatory authority of agency employing procedures substly similar to those in ct of law

92
Q

where party is a nominal party or didnt have full and fair opportunity to litigate material issue before agency, doctrines will or will not be applied?

A

NOT

93
Q

admin agencies may exercise those powers expressly authorized by their what?

A

enabling statutes.
power to conduct admin investigations.
in furtherance of investigation, to issue subpoenas to compel attendance of witnesses or production of evidence.- agency MUST make preliminary showing that info sought in subpoena is reasonably related to proper subject of inquiry and that there is some basis for inquisitorial action

94
Q

officer presiding at admin hearings are authorized to what?

A

issue subpoenas at request of ANY party.

95
Q

statutes governing adjudicatory proceedings before particular agencies may independently do what?

A

confer subpoena power.

if there is a specific statutory grant, agency’s power to issue subpoenas is derived solely from such grant.

96
Q

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

A

general subpoena power afforded to cts and attys under CPLR 2302

97
Q

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

A

the person who issued it.

98
Q

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

A

hearing process and MUST be made in sup ct

99
Q

judicial review - standing to whom?

A

available to person who have suffered an unfavorable admin decision and those that a stake in the outcome of the admin process, but whose injury is less direct

100
Q

2 step test for standing claims

A
  1. party MUST show some harmful effect - economic / non economic.
  2. interest sought to be protected MUST be arguably w/in zone of interest to be protected by statute under which agency has acted.
101
Q

party MUST attempt to obtain whatever admin relief might be available before what?

A

proceeding to the cts

102
Q

admin reliefs

A

utilizing procedures for admin hearings & internal admin appeals.
exception- agency actions challenged as unconstl/ wholly beyond agency’s grant of power / when resort to admin remedy would be futile / its pursuit would cause irreparable injury

103
Q

unless claim is that the underlying statute is unconstl in entirety, mere assertion of violation of constl rt doesnt always what?

A

avoid requirement to exhaust admin remedies

104
Q

if constl claim hinges on factual issues, necessary record MUST be what?

A

established at admin level

105
Q

if underlying statute provides exclusive admin remedy, what type of exceptions DONT apply?

A

futility and irreparable injury

106
Q

if party to admin adjudication pursues all avenues of relief open w/in agency w/o satisfactory result, admin determination if what?

A

final and ripe for judicial review

107
Q

admin agency action is final and ripe for review if it imposes does what?

A

imposes an obligation.
denies a rt.
fixes some legal reltship as consummation of admin process.
resulting in actual, concrete injury

108
Q

interlocutory determination may be what?

A

reviewable, if there are extraordinary circumstances

109
Q

unless shorter time is provided in law authorizing proceeding, proceeding ag body / officer MUST be commenced w/in four months after determination to review becomes what?

A

final and binding upon petitioner

110
Q

ART 78 of CPLR provides judicial proceeding and procedure used to do what?

A

challenge agency determinations.

special proceedings - subject to specific procedural requirements.

111
Q

actions for declaratory judgment under CPLR 3001 may be used to do what?

A

challenge agency actions that arent reviewable under ART 78, including challenged to agency rulemakings

112
Q

action for declaratory judgement is generally NOT subject to what?

A

procedural strictures of ART 78

113
Q

judicial review of admin actions pursuant to ART 78 is limited to what?

A

questions of law

114
Q

ct’s review of agency’s interpretation of statute is what?

A

limited

115
Q

NY admin agencies are entitled to what?

A

deference, in matters of statutory interpretation of legislation governing agency and in issuing decisions w/in agency’s own special expertise

116
Q

std of review is?

A

whether agency’s decision is supported by RATIONAL basis /was affected by error of law / was arbitrary and capricious / abuse of discretion

117
Q

if question is 1 of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on what?

A

any special competence / expertise of admin agency.
its interpretive regulations are to be accorded much LESS weight.
if regulation runs counter to clear wording of statutory provision, it shouldnt be accorded any weight.

118
Q

determinations of fact made AFTER formal adjudicatory hearing MUST be made how?

A

on record as whole and be supported by substl evidence.

119
Q

although specific findings of fact are beyond judicial review, whether admin agency determination is supported by substl evidence is a question of?

A

law

120
Q

substl evidence means what?

A

relevant proof as reasonable mind may accept as adequate to support a conclusion - lesser std than preponderance of evidence / evidence beyond reasonable doubt

121
Q

in reviewing agency determinations involving findings of fact made w/o formal adjudicatory hearing being required by statute / law, ct MUST determine whether there is what?

A

rational basis for determination / if it was arbitrary and capricious

122
Q

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

A

ended

123
Q

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

A

NO rational basis for exercise of discretion and act complained of is arbitrary and capricious

124
Q

arbitrary and capricious definition

A

taken w/o sound basis in reason / regard to the facts

125
Q

admin disciplinary penalties may be set aside ONLY if?

A

such punishment constitutes an abuse of discretion

126
Q

penalty MUST be upheld unless it what?

A

so disproportionate to offense in light of all circumstances as to SHOCK ONE’S SENSE OF FAIRNESS

127
Q

freedom of info law / public officers law

A

the agencies MUST make available for public inspection and copying of all records, except those records / portions thereof that fall w/in certain enumerated exceptions

128
Q

agency

A

any state / municipal dept / board / bureau / division / commission / committee / public authority / public corp / council / office / other govtl entity performing govtl or proprietary function for state / any 1 or more municipalities thereof.
except judiciary and state legislature

129
Q

access to govtl records under FOIL doesnt depend on what?

A

purpose for which records are sought

130
Q

open meetings law / public officers law requires public bodies, except judicial or quasi judicial proceedings and political committees to conduct ALL portions of any meeting how?

A

in venues open to the general public on reasonable advance notice to the public, unless public body calls executive session

131
Q

executive session may be called only how?

A

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

132
Q

permitted topics

A

proposed / pending litigation.
matters involving law enforcement.
matters involving criminal investigations.
employment.
personnel matters.
proposed acquisition of real property when publicity would affect property’s market value.

133
Q

minutes MUST be taken when?

A

during ALL open meetings, including executive sessions.

MUST include ALL matters voted upon and MUST be made available to public under FOIL / public officers law

NY BAR REVIEW (123 decks)

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