Administrative Law

If yes, were the procedures sufficient?

3 Part Balancing Test -Individual Harm by Gov't Intrusion VS. Government Interest; and the value of additional process Balance!

Exhaustion of Administration Remedies

A Party must exhaust all administrative remedies prior to petitioning for judical review EXCEPTIONS TO EXHAuSTION -Refusal- of an agency to dispose of the administrative claim -Futility of exhausting administrative remedies -Purely Constitutional issues are raised

Remedy for Failure of Public Records Compliance

A court may compel inspection Attorney's fee's are discretionary For P -Substantially Prevail For D -Substantially Prevail -Show action was frivolous or vexatious

Can the Agency Action Pass Judicial Review?

A court will consider if the agency action is in compliance with State Statutory Standards: ---This includes consideration of substantive constitutional rights ---U.S. Constitutional Procedural Due Process safeuards ---Indiana Open Door Law and Indiana Access to Public Records Act

Standard of Judicial Review

A.CAD.CON.ned. the JURI. PRO.SE Individuals seeking judicial review of administrative action must successfully demonstrate that the administrative action was

Procedural Due Process applies to:

ADJUDICATION ONLY ARPA controls Rulemaking

7)Attorney General Approval (FOR CAUSE)

AG may only disapprove FOR CAUSE if the rule; --does not comply with promulgation process ^(see 1-6) --Substantially Differs from prelimiary version and such difference is not a logical outgrowth; or --if the rule violates the law

What Action must ALJ take to have Ex Parte Communications

ALJ MUST -Place on the record all written and oral information regarding the ex parte communication -Advise all parties that these matters have been placed on the record A PARTY MAY -petition for ALJ's Disqualification

Administrative Adjudications

AOPA = Administrative Orders and Procedures Act

What is Administrative Law

Administrative Law governs the actions and decisions of government officials within administrative agencies created by enabling statutes.

CON (Standard of Review)

Against Constitutional right, power, privilege, or immunity

Agendas, Memoranda, and Minutes

Agendas, if used, copy must be posted at meeting location Memoranda, REQUIRED, must provide basic details regarding meetings logistics, attendance, voting and substance Minutes - if taken, must be made publicly available for inspection and copying

Scope of Open Door Law

All Agencies exercising executive, administrative, or legislative power in state or local government EXCLUDES JUDICIARY

Prohibited Ex-Parte Commjnications

An ALJ may not engage in ex-parte communications; directly or indirectly with an individual who is a PIPP Party to Proceedings Interested Party Presided at previous state of the proceedings; Prohibited from assisting ALJ ---investigators, prosecutors, advocates

Ascertainable Standards

An administrative rule must provide ascertainable standards upon which regulated parties may rely on in determining the rule's effect

Public Records Defined

Any material created, received, retained, maintained, or filed by public agency

Application AOPA

Applies only to the state executive branch Creates statutory exceptions for certain state administrative agencies and actions, and Sets minimal procedural rights

ACAD (Standard of Judicial Review)

Arbitrary, Capricious, abuse of discretion, or otherwise not in accordance with the law

8) Governor's Approval

Authority===The Governor may approve or disapprove with or without cause Approval -governor has 15 days or an additional 15 days after providing notice to the secretary of state.

Statutory Authority

BMV promulgates a rule allowing points to be assessed for speeds 1 mile below that statutory maximum limit This is an invalid rule, for exceeding legislative authority.

10)Recall of a Rule

Before filing with the Secretary of State, an agency may recall a rule.

Exceptions to Meetings

Caucuses- political party for political purpose On-Site Inspections Betterment Meetings Social Gatherings or Executive Sessions (FINS) -Final Action Public -Intent not to circumvent- cannot convene an executive session during a meeting -Notice, must provide 48 hours notice of executive session, citing specific statutory reason -Specific Statutory Reasons are basis for calling executive session

Attorney's Fee's

Discretionary -For plaintiff, if plaintiff prevails EXCEPTION -No initial filing by plaintiff with the public access counselor. Public access counselor is responsible for ensuring knowledge of and compliance with the open door law FOR DEFENDANT/AGENCY If D prevails and action was frivolous or vexatious "prevails"

5)Agency Response to Comments

Following the hearing, the agency must consider all comments and respond in writing

Compliance with ODL

Fulfilling Notice Requirements Maintaining, as required, an agenda, memoranda, and minutes

Issue Review: Limited to Legal Claims Brought During Proceedings

GR- Judicial Review is limited to legal claims brought during the administrative proceedings Waiver- if a legal issue is not raised during administrative proceedings it is waived EXCEPTION -an exception to issue waiver exists when there is insufficient notice; or The interests of justice are served by judicial resolution of an issue arising from a change in the controlling law after the agency action -Must make challenge during proceedings, not after or else they are waived

PRA Includes the Judiciary

General Rule: There is a right to inspect and copy public records

2)$500,000 Notice

If an agency believes a rule will have a fiscal impact greater than $500,000, the agency must provide fiscal analysis to the Rules Oversight Committee after preliminary adoption

What constitutes Denial of access

If the request is ORAL -Upon Official Denial or after 14 hours of denial by an agency employee Request is Written -Within seven days by a detailed writing

Administrative Law Judges (ALJ's)

Impartiality Required ----ALJ must have an interest in the proceeding to be impartial ---NO Bar Licence Required Administrative Adjudication may be made by 1 individual or by a Multi-Member panel designated by the agency

Limitations on Judicial Review (SET)

In order to have judicial review a party must also demonstrate: Standing Exhaustion of Administrative Remedies Timeliness (must also establish jurisdiction and venue)

6)Final Rule Adoption

In response to public comments, agency may change the rule prior to final adoption. Final version cannot substantially differ from the preliminary rule, unless changes are a logical outgrowth of public comments. Final version is then adopted by agency's final authroity

Procedural Due Process Questions

Is there a protected interest at stake? if yes Were the procedures sufficient ---procedural due process challenge is a challenge to the adequacy of the process, not the substance of the decision --Substantive Challenges exist independently

Factual Review: Limited to Existing Administrative Review Record

Judicial Review of the agency --Additional Evidence may be admitted if is ----Necessary to reviewing the challenged administrative action ----Not previously discoverable using due diligence; and ----Facts Relevant to a charge of Improper decision making body constitution or grounds for individual disqualification or on facts of Unlawfulness of procedures or decision making process

Administrative Hearing Procedures

Key distinction from Judicial Hearing--The normal rules of evidence do not apply ---Resulting Order in the hearing cannot be based Solely on hearsay evidence or any other typically inadmissible evidence.

Is there a protected interest at stake?

Life, Liberty, or Property LIBERTY -Created by numerous federal or state sources -Right to Travel, Right to Marry, Raise a Family PROPERTY -Interest must involve a legitimate claim of entitlement

21 Discretionary Exceptions to Public Records

May refuse to disclose public records that fall within 21 discretionary exceptions -Investigatory Records of law enforcement agencies, diaries, and test questions used in licensing examintations

What is a meeting?

Meeting is a gathering of a majority of the governing body for the purpose of taking official state action. Serial Meetings which in the aggregate comprise a majoirty of the governing body are also meetings.

General Meeting

Meetings of the governing bodies of public agencies must be open

Standing

No Individual Injury is Required -An individual does not need to demonstrate any injury different than that suffered

1)Notice of Intent

Notice of intent to adopt a rule must be published by an agency in the Indiana Register at least 28 days to the rules preliminary adoption. 28 DAYS BEFORE ADOPTION MUST HAVE NOTICE OF INTENT

3)Preliminary Rule Adoption: Publication and Notice

Preliminary Adoption of a rule is completed by: ----Publishing the preliminary rule in the Indiana Register; and ----Notice of public hearing on the rule's adoption in a general newspaper

Procedural Due Process (14th Amendment)

Procedural Due process guarantees the right to NOTICE and HEARING

4)Public Hearing and Opportunity to Comment

Public has opportunity to make written and oral comments

Indiana Public REcords Act

Purpose is full and complete access to Government Information; A public Agency subject to PRA includes any body exercising executive, legislative, or judicial duties.

Indiana Open Door Law

Purpose- Access to Agency Meetings

Rulemaking

Quasi-Legislative Function

Various Powers of Administrative Agencies?

Rulemaking Adjudication Investigation

12)Opennes

Rulemaking must comply with the Indiana Public Information Laws -Open Door Law -Access to Public Records Law

Valid Rule Must Be

Statutorily Authorized (not ultra vires) Have ascertainable standard; and Be promulgated properly

JURI (Standard of Review)

The agency action was in excess of statutory Jurisdiction, authroity, limitations, or short of statutory right

S.E. (Standard of Review)

The agency action was unsupported by substantial evidence

PRO (Standard of Review)

The agency action was without observance of procedure required by law; or

11)One Year Deadline

The entire process must be completed within one year.

Constitutional Note on Rule Making

The legislature may constitutionally delegate to administrative agencies the power to promulgate rules without violating the principle of separation of powers However, in delegating rulemaking authority, the legislature MUST provide REASONABLE STANDARDS which are consistent with the agency's statutory purpose (organic statute) (ultra vires)

9)Filing with the Secretary of State

The secretary of state must review the rule for acceptable form within 3 days

Judicial Review of Administrative Rulemaking

The validity of Administrative Rulemaking is subject to De novo review Administrative Adjudication is Appeal

Notice Requirements of Meetings

Time and Form - At least 48 hours before the meeting, public notice of the date, time, and place of any meeting must be given Type of Notice -Office Posing --copy of notice must be posted at the principal office of the public agency conducting the meeting AND --Notice SHALL be mailed to all news media which requested notice by January 1 of that year

Timeliness- 30 days

To preserve the right to judicial review a person must object in a timely manner to: -an order; or -a petition for review of an order Petitions for review must be filed within 30 days after notice of agency action is served

Individual Standing

To whom the action was specifically directed Who was a party to the administrative proceedings; Person is eligible for standing under any applicable law; or Otherwise aggrieved or adversely affected---requires personal harm (the agency has standing as well in courts)

When does Ex Parte Communication Occur

When ALJ communicates with prohibited PIPP -Without Notice and Opportunity for participation provided to all parties; and communication on an issue relevant to the pending proceedings is the subject of the communication

12 Steps to make a RULE- ARPA (Administrative Rulemaking Procedure Act)

When Rules are to Be made -Earliest Date: Before statutes Effective Date -Latest Date: 60 days After Statutes effective Date -Exception:Must notify the Rules Oversight Committe

Remedy for Violation of Open Door Rule

a court may issue a declaratory judgment, issue injunction, or declare void any policy, decision, or final action of a public agency which violates the open door law

12 Exceptions to Public Records

an agency SHALL NOT disclose public records which fall within 12 statutory exceptions -records declared confidential by state or federal law, records containing trade secrets, grade transcripts or license examination scores and photographs of autopsies

7 Cont. Attorney General Approval for TAKING

if the rule a taking of property the AG must advise the governor and the head of the agency APPROVAL-AG can affirmatively approve or the rule is deemed approved after 45 days (pocket approval

Form of Requests for Public Records:Particular in Substance and Form

in requesting public information the person must: -identify the record with reasonable particularity AND -At the agency's discretion, place the request in writing or on the form provided