Barbri Review
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| Administrative law- Overall approach | 1. Look for enabling law (statutory language) if exists apply,
2. If not, administrative procedure act,
3. Always keep in mind constitutional requirements
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| Administrative law- Administrative agencies (AG) | Must function within the statute creating them (enabling law, organic act), and comport with constitutional requirements
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| Administrative law- Issue spotting | Facts must involve an administrative agency, in Wyoming, it will be a-
1. Board agency,
2. Commission,
3. State office, or
4. University of Wyoming (possible)
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| Administrative law- Tested in 3 areas | 1. Agency creation and jurisdiction (if statutory language),
2. Agency action (always tested),
3. Judicial review (if call states "in ct, or going to ct")
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| Agency Creation and Jurisdiction (if statutory language)- Statutory issues (limits); Ultra vires | AGs must act within the scope of their enabling legislation;
Ex: Car sear regulatory agency decides to pass regulation applying to air bags. But, argue unable because limited to seats so attempt with air bags is void as ultra vires act
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| Agency Creation and Jurisdiction (if statutory language)- Statutory issues (limits); Statutory interpretation | If acting beyond scope, AGs must be reasonable in interpreting their enabling statute;
Ultra vires challenge responses is interpretation of law is reasonable;
Ex: Car seat regulatory agency argues passenger safety so air bags in scope of authority
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| Agency Creation and Jurisdiction (if statutory language)- Constitutional limits; Doctrine of delegation | Constitution limits ability of legislature to delegate its power to an AG
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| Agency Creation and Jurisdiction (if statutory language)- Constitutional limits; Doctrine of delegation: G/R | When legislature delegates its power to administrative agencies, it must provide "adequate safeguards" for use of power
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| Agency Creation and Jurisdiction (if statutory language)- Constitutional limits; Doctrine of delegation: What and the when test | Legislature must define the subject matter the agency has power over, and must provide an "intelligible principal" stating when the agency can use that power
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| Agency Creation and Jurisdiction (if statutory language)- Constitutional limits; What if legislature passes a law authorizing an agency "to regulate the environment," and the agency passes a law completely banning the use of pesticides? | Delegation is unconstitutional because the legislature has not stated "when" the power of the agency may be used;
No "intelligible principle" like public safety or public health to guide agency's action
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| Agency Action (always) | Agencies have power to do the work of gov't, but must be fair
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| Agency Action (always)- Fairness | Defined by-
1. Agencies enabling law(statutory language),
2. The administrative procedure act (APA), and
3. The constitution
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| Agency Action (always)- Enabling act (statutory language) | *Always apply it if you see it*;
Trumps the APA
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| Agency Action (always)- 3 areas of agency action; APA (Constitutional concern) | 1. Investigation (Unreasonable search and seizure),
2. Rulemaking (Due process),
3. Adjudication (Due process)
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| Agency Action (always)- Criminal penalties | Agencies may impose civil sanctions, but may NOT issue criminal penalties;
Agency's have to go to court to enforce a statute that allows criminal penalty
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| Agency Action (always)- Process suspended in emergency | Agency process required by APA or Constitution may be temporarily suspended for good cause shown (adequate factual basis, not just rumor)
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| Agency Action (always)- Process suspended in emergency; What if State Health Board discovers that patrons of a particular restaurant are contracting hepatitis? | Upon an adequate factual basis (not rumor), Board may close restaurant immediately despite requirement of hearing b/c emergency involving risk to public health good cause. But, must provide hearing ASAP;
Hospitals, toxic substance, food, nursing homes
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| Agency Action (always)- Investigation | Agencies may compel info through subpoena power and through physical inspection or search
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| Agency Action (always)- Investigation; Subpoenas | Subpoena power-
1. Must be authorized by law (separate statute, no APA),
2. Must be constitutional-
a. Cannot be vague,
b. Cannot be irrelevant,
c. Cannot be unduly burdensome;
Very heavy burden sousu. power;
Bottom line agency's must be reasonable
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| Agency Action (always)- Investigation; Searches/physical inspection | Warrants are required unless exception;
If warrant required, it must define scope of search, and agency must have a reasonable basis for the inspection/search;
Burden of proof: Probable cause, but a systematic approach or neutral plan is valid
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| Agency Action (always)- Investigation; Searches/physical inspection: What if Occupational Health Agency conducts surprise inspection of local dry cleaner without warrant in search of health code violation? | Search valid if agency can show it conducts yearly dry cleaner inspections following a city grid plan where agency goes from N to S of city on block by block basis. Systematic approach shows not targeting particular entity without probable cause.
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| Agency Action (always)- Investigation; Searches/physical inspection: Exceptions | No warrant required if-
1. Consent,
2. Emergency,
3. Plain view (business public portions),
4. Authorized by statute
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| Agency Action (always)- Investigation; Searches/physical inspection: Authorized by statute exception | An agency may conduct a warrantless search of a commercial enterprise in a heavily regulated industry if a law-
1. Expressly authorizes warrantless search,
2. Gives notice of search, and
3. Defines scope of search;
Guns, alcohol, tobacco
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?) | Is the agency issuing a broad policy statement that is general in nature, and is it prospective or forward looking? If so, the agency is engaged in rulemaking.
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); On the record language | Formal rulemaking;
If statutory language says rules must be made "on the record after opportunity for an agency hearing", the agency must conduct a "trial-type" hearing;
Go to adjudication requirements
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); No on the record language, Notice requirements | 1. Notice (at least 45 day before promulgation) to-
a. Attorney general,
b. Secretary of state,
c. Legislative services,
i. Authority, rule, time, place, & nature of proceeding,
ii. Notice must state place public obtains copy of rule;
WY no state re
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); No on the record language, Written comment or hearing requirement | 2. Written comment or hearing (at least written comment must be allowed);
Oral hearing required if at least 25 persons on petition
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); No on the record language, Filed rule must be filed and approved by governor requirement | 3. Filed rule must be filed and approved by governor (within 75 days of agency action adopting rule);
Presumption procedure done correctly once filed
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); General rule | Agency cannot be biased on rulemaking;
Standard: Rulemakers must not have "unalterably closed minds"
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); Constitutional exception to requirements, Adjudicative/contested case facts | Even if above requirement met, if rules applied to-
1. One or very few persons, or
2. Rule promulgated to resolve a particular dispute,
Must agree Due Process will require an oral hearing b/c adjudicative facts;
WY: oral hearing if requested by 25 per
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| Agency Action (always)- Rule making (Is the agency acting like a legislature?); What if State environmental protection agency promulgates air pollution control rules for all copper smelters located in the state, but there is only one smelter? | Despite compliance with rulemaking requirements, promulgation of rules that only actually applies to one company may require an oral hearing because of Due Process;
Due process does not always require full hearing
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| Agency Action (always)- Adjudication (Is the agency acting like a court?) | Agency engaged in fact finding related to a specific dispute, and is issuing an order to be applied retroactively to resolve the dispute then oral hearing is mandated by law (const., statute, or rule);
Licensing= adjudication
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Adequate notice requirement | 1. Adequate notice;
(time and place, nature of hearing, fact and legal issues);
(WY- if inadequate notice or surprise, objecting party must move for continuance or else viewed as harmless error)
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement | Agency must conduct hearing with following requirements-
a. Proper and necessary parties,
b. Impartial decision-maker,
c. Reliable evidence,
d. Procedurally sufficient
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement, Proper and necessary parties | Must include proper and necessary parties
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement, Impartial decision-maker | Must have impartial decision-maker-
a. Decision-maker must be free from improper bias-
i. No prejudgment (slanderous words),
ii. No financial connection conflict of interest,
b. Cannot be decision-maker & witness,
c. Cannot both investigate & adjudic
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement, Reliable evidence requirement | Based on reliable evidence, BUT
a. Not bound by formal rules of evidence,
b. Hearsay is admissible if reliable,
c. Ex-parte communications on the merits must be placed on the record,
d. Official notice is lesser standard than judicial notice
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement, Procedurally sufficient | a. Parties have right to have counsel present,
b. Discovery (limited),
c. Oral argument,
d. Cross-examination;
Burden of proof: "preponderance" evidence;
WY- disciplinary hearings burden= clear and convincing
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Decision requirement | 1. Agency must issue a final written order based on the record,
2. Order must contain facts, law, and reason for decision
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Constitutional exception to statutory requirements: Life, liberty or property | Always argue Due Process requires the procedure denied-
a. Life, liberty or property interest involved (hint: usually a "property interest" is involved),
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| Judicial review (If in ct or going to ct)- Jurisdiction | 1. Standing,
2. Exhaustion of remedies,
3. Ripeness,
4. Finality
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| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: a. Injury in fact | Injury in fact (injury broad=>economic, aesthetic, conversational, recreational)-
a. Causation (show injury caused by agency action),
b. Redessability (agency has power to do something about injury)
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| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: b. Zone of interest | Within zone of interest of legislation (like torts= foreseeability--is the party someone legislature intended to be affected by law?)
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| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: Two special cases | 1. Third-party standing,
2. Associational or organizational standing
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| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: Two special cases, Third-party | 3-part test-
a. Third party has difficulty asserting right ("stigma"),
b. Close relationship between party in ct and third party ("relation"), AND
c. Third party lacks resources to sue ($$$)
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| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: Two special cases, Third party- Examples | Ex: Bar owner assert rights of young when drinking age raised to 21 from 18 (stigma, economic relationship, 18-21 no $);
Ex: Obstetricians assert rights of women patients challenging prohibition on Medicaid funds for abortions (stigma, dr-patient, no $)
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| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: Two special cases, Associational or organizational | a. Member must otherwise have standing to sue in their own right,
b. Interest the assn seeks to protect must be related to the assn's purpose,
c. Neither claim nor relief must require participation of individual members (injunctive/declaratory)
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| Judicial review (If in ct or going to ct)- Jurisdiction; Exhaustion of remedies | Parties must exhaust administrative remedies before proceeding to court
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| Judicial review (If in ct or going to ct)- Jurisdiction; Exhaustion of remedies; What if tenant alleging housing code violation proceed directly into ct even though State Housing Authority has jurisdiction? | Ct action may be dismissed for failure to exhaust administrative remedy
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| Judicial review (If in ct or going to ct)- Jurisdiction; Exhaustion of remedies: Exceptions | 1. Futility or bias,
2. Irreparable harm (more than mere $),
3. Constitutional questions (WY- de novo review),
4. Express agency authority (in statutory language)
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| Judicial review (If in ct or going to ct)- Jurisdiction; Ripeness | A matter is ripe for review only if-
1. Question presented to ct is legal in nature, and
2. There would be a substantial hardship to the petitioner if review were denied;
-Ask- Has party been subjected yet to enforcement action by agency?
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| Judicial review (If in ct or going to ct)- Jurisdiction; Ripeness: Concepts (use on bar) | 1. Judges do not like to decide issues in a vacuum, there must be a case or controversy before them,
2. Judges are not scientists, agencies must supply proper technical expertise within their jurisdiction
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| Judicial review (If in ct or going to ct)- Jurisdiction; Finality | Discuss if you are arguing either exhaustion or ripeness;
If remedies are not exhausted or if an issue is not ripe for review it is generally true that agency action is not final
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| Judicial review (If in ct or going to ct)- Jurisdiction; Finality: G/R | Cts may only review final agency action
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| Judicial review (If in ct or going to ct)- Scope | In WY, must appeal within 30 days of final agency decision
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| Judicial review (If in ct or going to ct)- Scope (How does a ct handle the merits of an appeal?); Standard of review (overall agency action) | Key: Determine whether the problem involves-
1. Rulemaking (a rule), or
2. Whether it involves adjudication
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| Judicial review (If in ct or going to ct)- Scope (How does a ct handle the merits of an appeal?); Standard of review (overall action): Rulemaking G/R | Standard of review is "arbitrary and capricious";
Does the agency have a rational basis for its action?;
Default standard
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| Judicial review (If in ct or going to ct)- Scope (How does a ct handle the merits of an appeal?); Standard of review (overall action): Adjudication G/R | Standard of review is "substantial evidence based on the record as a whole";
Oral hearing producing record-
Could reasonably prudent reviewer reading the record reach the same result?
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| Judicial review (If in ct or going to ct)- Scope (How does a ct handle the merits of an appeal?); Deference (facts and law) | Key: Always discuss judicial deference whenever an agency has taken action that is being reviewed in ct
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| Judicial review (If in ct or going to ct)- Scope (How does a ct handle the merits of an appeal?); Deference (facts and law): Fact-finding | Cts are very deferential to agency fact finding;
In appeals of agency adjudications, fact finding is often given "res judicata" effect
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| Judicial review (If in ct or going to ct)- Scope (How does a ct handle the merits of an appeal?); Deference (facts and law): Legal interpretation | Cts will defer to reasonable agency interpretations of law if statutory language ambiguous or non-existent;
However, where statutory language on point clear, cts will not defer to contrary agency interpretations;
Agencies must do what the law commands
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| Public meetings act | All agency action must be taken in open and public meetings, including deliberation;
If no action to be taken, then can be closed;
Remedy if does not happen- agency action is null and void, and knowing violation criminal
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| Public records act | All public records must be available for inspection
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Constitutional exception to statutory requirements: "Mathews" balancing test | b. Apply balancing test- gov't interest, private interest, risk, and risk of error ("Mathews"),
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Constitutional exception to statutory requirements: DP denied | c. Due process requires procedure denied (hint: usually hearing or cross-examination)
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