Barbri Review
Quiz yourself by thinking what should be in
each of the black spaces below before clicking
on it to display the answer.
Help!
|
|
||||
|---|---|---|---|---|---|
| Administrative law- Overall approach | show 🗑
|
||||
| show | Must function within the statute creating them (enabling law, organic act), and comport with constitutional requirements
🗑
|
||||
| show | 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)
🗑
|
||||
| Administrative law- Tested in 3 areas | show 🗑
|
||||
| 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
🗑
|
||||
| show | 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
🗑
|
||||
| show | Constitution limits ability of legislature to delegate its power to an AG
🗑
|
||||
| show | When legislature delegates its power to administrative agencies, it must provide "adequate safeguards" for use of power
🗑
|
||||
| Agency Creation and Jurisdiction (if statutory language)- Constitutional limits; Doctrine of delegation: What and the when test | show 🗑
|
||||
| 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
🗑
|
||||
| Agency Action (always) | show 🗑
|
||||
| show | Defined by-
1. Agencies enabling law(statutory language),
2. The administrative procedure act (APA), and
3. The constitution
🗑
|
||||
| show | *Always apply it if you see it*;
Trumps the APA
🗑
|
||||
| show | 1. Investigation (Unreasonable search and seizure),
2. Rulemaking (Due process),
3. Adjudication (Due process)
🗑
|
||||
| Agency Action (always)- Criminal penalties | show 🗑
|
||||
| Agency Action (always)- Process suspended in emergency | show 🗑
|
||||
| Agency Action (always)- Process suspended in emergency; What if State Health Board discovers that patrons of a particular restaurant are contracting hepatitis? | show 🗑
|
||||
| Agency Action (always)- Investigation | show 🗑
|
||||
| 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
🗑
|
||||
| show | 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
🗑
|
||||
| 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 🗑
|
||||
| Agency Action (always)- Investigation; Searches/physical inspection: Exceptions | show 🗑
|
||||
| show | 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
🗑
|
||||
| Agency Action (always)- Rule making (Is the agency acting like a legislature?) | show 🗑
|
||||
| Agency Action (always)- Rule making (Is the agency acting like a legislature?); On the record language | show 🗑
|
||||
| show | 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
🗑
|
||||
| show | 2. Written comment or hearing (at least written comment must be allowed);
Oral hearing required if at least 25 persons on petition
🗑
|
||||
| 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 | show 🗑
|
||||
| show | Agency cannot be biased on rulemaking;
Standard: Rulemakers must not have "unalterably closed minds"
🗑
|
||||
| Agency Action (always)- Rule making (Is the agency acting like a legislature?); Constitutional exception to requirements, Adjudicative/contested case facts | show 🗑
|
||||
| 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
🗑
|
||||
| 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
🗑
|
||||
| show | 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)
🗑
|
||||
| show | Agency must conduct hearing with following requirements-
a. Proper and necessary parties,
b. Impartial decision-maker,
c. Reliable evidence,
d. Procedurally sufficient
🗑
|
||||
| show | Must include proper and necessary parties
🗑
|
||||
| Agency Action (always)- Adjudication (Is the agency acting like a court?); Mandated oral hearing: Hearing requirement, Impartial decision-maker | show 🗑
|
||||
| show | 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
🗑
|
||||
| show | 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
🗑
|
||||
| show | 1. Agency must issue a final written order based on the record,
2. Order must contain facts, law, and reason for decision
🗑
|
||||
| show | Always argue Due Process requires the procedure denied-
a. Life, liberty or property interest involved (hint: usually a "property interest" is involved),
🗑
|
||||
| show | 1. Standing,
2. Exhaustion of remedies,
3. Ripeness,
4. Finality
🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: a. Injury in fact | show 🗑
|
||||
| show | Within zone of interest of legislation (like torts= foreseeability--is the party someone legislature intended to be affected by law?)
🗑
|
||||
| show | 1. Third-party standing,
2. Associational or organizational standing
🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: Two special cases, Third-party | show 🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Standing: Two special cases, Third party- Examples | show 🗑
|
||||
| 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)
🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Exhaustion of remedies | show 🗑
|
||||
| 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 🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Exhaustion of remedies: Exceptions | show 🗑
|
||||
| show | 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?
🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Ripeness: Concepts (use on bar) | show 🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Finality | show 🗑
|
||||
| Judicial review (If in ct or going to ct)- Jurisdiction; Finality: G/R | show 🗑
|
||||
| show | In WY, must appeal within 30 days of final agency decision
🗑
|
||||
| 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 🗑
|
||||
| show | Standard of review is "arbitrary and capricious";
Does the agency have a rational basis for its action?;
Default standard
🗑
|
||||
| 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 🗑
|
||||
| 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 🗑
|
||||
| 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 | show 🗑
|
||||
| show | 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
🗑
|
||||
| show | 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
🗑
|
||||
| show | All public records must be available for inspection
🗑
|
||||
| Agency Action (always)- Adjudication (Is the agency acting like a court?); Constitutional exception to statutory requirements: "Mathews" balancing test | show 🗑
|
||||
| show | c. Due process requires procedure denied (hint: usually hearing or cross-examination)
🗑
|
Review the information in the table. When you are ready to quiz yourself you can hide individual columns or the entire table. Then you can click on the empty cells to reveal the answer. Try to recall what will be displayed before clicking the empty cell.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
Embed Code - If you would like this activity on your web page, copy the script below and paste it into your web page.
Normal Size Small Size show me how
Normal Size Small Size show me how
Created by:
dmoore147
Popular Law sets