Administrative Law
To which State Actions does the WA APA apply?
(1) Administration. (2) Rulemaking. (3) Adjudication. (4) Investigation.
Scope of Judicial Review (adjudication)
A court may set aside, enjoin, remand, or order agency action. Review is de novo (errors of law), substantial evidence is issue of fact (fact not supported by evidence), and arbitrary and capricious review.
Right to Administrative Hearing
A person or business has a right to an administrative hearing against a local agency if the agency has denied life, liberty, or property interests and a right against APA-covered agencies if she is harmed by an agency action.
Grounds for Denying Judicial Review
A person or business lacks a right to judicial review if (1) they lack standing; (2) the SOL for filing has run; (3) the agency action is not final; (4) there's a failure to exhaust administrative remedies; or, (5) the case is not ripe.
Standing to Appeal
A person or business must have standing to appeal an agency decision. For state agency actions, the constitutional and APA standard is "any person adversely affected or aggrieved." For local agency action, the constitutional standard is injury in fact, causation, and redressibility.
Rule
A rule is "any agency order, directive, or regulation of general applicability" that (1) subjects a person to a penalty, (2) effecting procedures in an agency hearing, (3) relates to public benefits conferred by law, (4) relates to issuance/suspension of commercial/professional license, or (5) relates to any mandatory standards for any product/material (applicable pre sale/distribution).
Remedy for Violation of N&C Requirements
A rule is INVALID and UNENFORCEABLE under the APA if it's not published 20 DAYS in advance and there is no comment period.
Grounds for Rule Irrationality
A rule may be irrational under an arbitrary and capricious finding or for violating substantive due process.
Ultra Vires
An agency action is ultra vires when it exceeds the grant of power in the enabling statute.
Remedy for Violation of Appearance of Fairness Doctrine
An agency decision is void if the adjudication hearing violated the Appearance of Fairness Doctrine, which hinges on whether a reasonably prudent disinterested observer would conclude that the parties did not obtain a fair, impartial, or neutral hearing.
Agency Defenses to Failure to Comply with APA Rulemaking Procedures
An agency may defend a claim that it failed to comply with APA rulemaking procedures by arguing that (1) it substantially complied with procedures; (2) there was an emergency; or, (3) that the 2-YEAR statute of limitation for challenging a rule has run.
Public Comment Requirement
An agency must (1) allow for comment orally or in writing & (2) fully consider them.
Notice of Proposed Rule
An agency must give notice of a proposed rule publication in the State Register 20 DAYS before the rulemaking hearing. Publication must include the rule's (1) statutory authority, (2) summary, (3) explanation, (4) TPM for public comment.
Subpoenas
An agency must have statutory authority to subpoena witnesses and documents (see APA or enabling statute). If an agency's subpoena is insufficiently specific, it violates the 14A.
Publication of Final Rule
An agency must publish the rule's text and description (i.e., reasons for adoption, changes, summary of comments) in the State Register at least 30 DAYS before the rule takes effect unless it's an emergency.
Timing of Appeal (judicial review)
Appeal must satisfy timeliness, finality, exhaustion, and ripeness. The statute of limitations for appealing a rulemaking is 2 YEARS and for an adjudication it's 30 DAYS. Appeal must be from a final order and the party must have exhausted all internal agency review procedures before appeal. Exceptions to the exhaustion requirement arise where the administrative remedy is inadequate or futile, or where it will result in irreparable harm.
Essay Inquiries for Rule Promulgation
Ask (1) did the agency act w/o a rule; (2) did it follow APA requirements; (3) does the rule violate the state/federal constitution; and, (4) is the rule rational.
Concise Explanatory Statement & Rule Making File
Before an agency finally adopts a rule, it must write up (1) the reason for the rule, (2) changes made to the rule, (3) summary of comments, and (4) agency response to comments. Judicial review is based on this Rule Making File.
Pre-Notice Inquiry
Before giving actual notice of a proposed rule, agencies must give notice that the agency is considering adopting a rule by publication in the State Register at least 30 DAYS before actual Notice of Proposed Rule. Publication must include the rule's statutory authority, reasons needed, goals, and consider alternative procedures.
Scope of Judicial Review (rulemaking)
Claims for a declaratory judgment must be brought in Thurston County Superior Court. The rule is subject to de novo (void if an error of law) or arbitrary and capricious review (void if not product of a rational decision maker).
Due Process (adjudication)
Due process applies when an agency acts like a court by deciding a case involving a specific individual or business. Statutory due process applies to hearings governed by the APA and Constitutional due process (5A/14A) applies to hearings not so governed.
Exception to APA Notice/Hearing Requirements
Emergencies are an exception to APA notice/hearing requirements.
Exception to Advance Notice
Emergency rules are exempt from N&C requirements and are valid for 120 DAYS or less. The APA defines "emergency" as the adoption, amendment, or repeal of a rule which is "necessary to preserve the public health, safety or welfare, and following the requirements would be contrary to the public interest."
Enabling Legislation/Statute
Enabling legislation is legislation that creates an agency.
Examples of APA Agency Statutory Due Process Violations
Examples include (1) violation of notice and hearing procedures; (2) notice timeframe too short; (3) hearing held too quickly; (4) no right to cross examine witnesses; (5) hearing officer not impartial; (6) hearing decision not in writing.
Exceptions to Pre-Notice Inquiry
Exceptions to the pre-notice requirement include (1) emergencies, (2) statutorily required rules, and (3) procedural rules.
Agency Action w/o a Rule
If an agency acts against a person or business w/o having a published rule, the agency action is unenforceable under the APA.
Remedy for violating APA rulemaking N & C
If an agency doesn't follow APA rulemaking notice and comment procedures, the action taken is void.
Remedy for Ex Parte Communications
If an ex parte communication occurs, the hearing officer must give the other party notice on the record and an opportunity to respond.
Additional Requirements of Significant Legislative Rules
In addition to publication, an agency must (1) justify the need for the SLR and (2) do a cost-benefit analysis.
Ripeness (judicial review)
Ripeness usually applies to rules. Judicial review of rules is limited to issues ripe for decision. An issue is ripe if it would cause irreparable harm.
Scope of Rulemaking Procedures
Rulemaking procedures don't apply to (1) statements of internal policy, (2) interpretive & policy statements, (3) traffic restrictions, (4) rules of state institutions of higher ed.
Significant Legislative Rule
SLRs are rules that adopt substantive provisions of law, which, if violated, subject a person or business to penalty or sanction or revocation of license or create a new policy or program.
APA Statutory Due Process Notice Requirement
Statutory due process requires (1) written notice of agency action; (2) a right to request a hearing w/in 20 DAYS of notice; (3) 7 days notice of the hearing; (3) opportunity to examine witnesses and present evidence; (4) opportunity to cross-examine witnesses; (5) an unbiased decision-maker; and (6) a written decision with findins of facts and conclusions of law.
Searches and Inspections (investigation)
The 14A requires a warrant before an agency search unless the search involves (1) a heavily regulated business (e.g., gun shop); (2) a public area; and, (3) a non-intrusive inspection. Examples of inspections include compliance with building codes, fire codes, zoning, and license requirements.
Records (investigation)
The 5A bars agencies from requiring businesses to keep records when (1) no statute requires the records (2) there are no "public aspects" to the info demanded and (3) the agency is only requiring it of a selective group inherently suspect of crime. An exception arises where an agency requires that a government regulated business keep records because they're quasi-public rather than private records.
General APA Rulemaking Requirements
The APA requires public notice for every proposed rule and the opportunity to comment on it.
APA Statutory Due Process Hearing Requirements
The APA's statutory due process requirements include (1) notice; (2) right to present evidence; (3) right to give testimony under oath; (4) right to cross-examine witnesses; (5) right to an impartial presiding officer/decision maker; (6) absence of ex parte communications; (7) relaxed rules of evidence; and, (8) a written order.
Agency Investigations Generally
The Constitution, not the APA, governs agency investigations, which involve requiring businesses to keep records, searches and inspections, and subpoena powers.
Admissibility Test for Evidence
The admissibility test for evidence at an APA-governed hearing is whether a reasonably prudent person would rely upon in the conduct of their affairs.
Pre-Deprivation Hearing Required
The more critical the benefit being taken away by the agency is for survival, the more likely the court is to require a pre-termination hearing (e.g., welfare benefits, municipal utility shut-offs).
Improper Delegation of Authority
To be a proper delegation of authority, enabling legislation must include standards as to the nature and control of the agency's powers. Improper delegation of authority renders the statute void.
Balancing Test for non-APA agency adjudication
To determine whether there was enough process, courts weigh (1) individual interests at issue; (2) the risk of erroneous deprivation; and, (3) the governmental interest of additional process.
Constitutional Due Process for Local Agencies
To satisfy constitutional due process, non-APA agency adjudications must provide (1) notice, (2) an opportunity to be heard, and (3) an impartial decision-maker.
Scope of WA APA
WA's APA applies to state agencies and local agencies performing state functions or applying state law. Common and constitutional law applies to local agencies performing local functions. ALSO: It applies to university boards w/r/t personnel matters; it doesn't apply to the AGO, Dep't of Corrections, Legislature, and Judiciary (including WSBA).
