Barbri Review
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| show | 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) | show 🗑
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| Administrative law- Issue spotting | show 🗑
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| show | 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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| show | 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 | show 🗑
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| show | Constitution limits ability of legislature to delegate its power to an AG
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| show | When legislature delegates its power to administrative agencies, it must provide "adequate safeguards" for use of power
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| show | 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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| show | 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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| show | Agencies have power to do the work of gov't, but must be fair
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| Agency Action (always)- Fairness | show 🗑
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| Agency Action (always)- Enabling act (statutory language) | show 🗑
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| show | 1. Investigation (Unreasonable search and seizure),
2. Rulemaking (Due process),
3. Adjudication (Due process)
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| Agency Action (always)- Criminal penalties | show 🗑
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| show | 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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| show | 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 | show 🗑
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| show | 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 | show 🗑
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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? | show 🗑
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| Agency Action (always)- Investigation; Searches/physical inspection: Exceptions | show 🗑
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| Agency Action (always)- Investigation; Searches/physical inspection: Authorized by statute exception | show 🗑
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| show | 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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| show | 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 | show 🗑
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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 | show 🗑
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| show | 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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| show | Agency cannot be biased on rulemaking;
Standard: Rulemakers must not have "unalterably closed minds"
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| show | 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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| show | 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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| show | 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 | show 🗑
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| show | 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 | show 🗑
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| show | 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 | show 🗑
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| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement, Procedurally sufficient | show 🗑
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| show | 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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| show | 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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| show | 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 | show 🗑
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| show | Within zone of interest of legislation (like torts= foreseeability--is the party someone legislature intended to be affected by law?)
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| show | 1. Third-party standing,
2. Associational or organizational standing
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| show | 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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| show | 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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| show | 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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| show | 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? | show 🗑
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| Judicial review (If in ct or going to ct)- Jurisdiction; Exhaustion of remedies: Exceptions | show 🗑
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| Judicial review (If in ct or going to ct)- Jurisdiction; Ripeness | show 🗑
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| Judicial review (If in ct or going to ct)- Jurisdiction; Ripeness: Concepts (use on bar) | show 🗑
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| Judicial review (If in ct or going to ct)- Jurisdiction; Finality | show 🗑
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| Judicial review (If in ct or going to ct)- Jurisdiction; Finality: G/R | show 🗑
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| Judicial review (If in ct or going to ct)- Scope | show 🗑
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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) | show 🗑
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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 | show 🗑
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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 | show 🗑
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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) | show 🗑
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| show | 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 | show 🗑
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| Public meetings act | show 🗑
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| Public records act | show 🗑
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| show | b. Apply balancing test- gov't interest, private interest, risk, and risk of error ("Mathews"),
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| show | c. Due process requires procedure denied (hint: usually hearing or cross-examination)
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Created by:
dmoore147
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