Bar---Illinois Administration Law.

Front 1

what are the 5 issues with admin. law.

Back 1

1. what type of admin action is involved.

2. what are the plausible grounds for judicial review.

3. what are the proper standard scope of review.

4. did the agency use the correct procedure.

5. have all the conditions on obtaining judicial review been satisfied.

Front 2

what is the

1. subject matter jurisdiction.

2. combination of power

3. enabling act.

Back 2

1. subject matter is always limited ( by statute)

2. the combination power is given = legislative, executive and judicial.

3. Enabling act (organic) = statute by legislature creates agency = specifies its jurisdiction and objectives and grants it power.

Front 3

what is the IAPA

what is the ARL

what is the OMA

Back 3

illinois administrative procedure act.

illinois administrative review law

Open meeting act.

Front 4

what does

1. discretion

2. expertise

3. deference

4. scope of review mean.

Back 4

1. discretion = range of free choice.

2. expertise = expertness. (can only deal with limited issues = limited subject matter jurisdiction)

3. difference = crt only defer if agency has expertise.

4. scope of review = standard of review = mandatory minium weight or respect which a crt must give agency.

Front 5

what are the 3 types of the category of admin. actions involved.

Back 5

1. quasi judicial = contested cases. ( formal contested cases)
--fed = formal adjudication.

2. Quasi executive = non- contested cases (informal adjudication)
--fed = informal adjudication.


3. Quasi legislative = Rule making.
--fed = Rule making.

Front 6

what happens in a contested case.

what are the 4 minimum procedures.

Back 6

where individual rights-duties-or privileges are required by law to be determined by an agency only after an opportunity for a hearing.

1. right to present evidence.

2. knowledge of opposing evidence.

3. the opportunity to test and rebut opposing evidence.

and

4. the avid. must be based solely on evid. produces at the hearing.

Front 7

who has the follow the IAPA

Back 7

contested case procedural of IAPA apply to all agencies.

State and local = must = follow illinois administrative Policy Agency and rulemaking procedural.

Front 8

what are the limitation of the agencies.

Back 8

agencies can not make rules or ruling for a case.

==agencies can make all of the managerial decisions but not rule making that affects others outside the agencies.

caveat :
agencies can make decision based on letter ruling
(ruling based on the facts that are readily available).

Front 9

what are the diff types of judicial review

Back 9

1. constitutional review.
= de novo review (crt just looks at previous ruling= no new facts)

2. jurisdictional review
= crt interprets statutes.

3. Procedural review
= did they do what they were suppose to do, did they follow the rules and procedure.

4. Merits review

A. contested cases = substantial evid. test
===was this reasonable in light of whole record.
--applies to the finding of facts only.

B. rulemaking and other agency action
====was the decision arbitrary, capricious, an abuse of discretion.

Front 10

hypo.

FTC engages in Tv commercial regulation.
and found deception and fraud.

Back 10

1. constitutional review.
= de novo review (crt just looks at previous ruling= no new facts)

2. jurisdictional review
= crt interprets statutes.

3. Procedural review
= did they do what they were suppose to do, did they follow the rules and procedure.

4. Merits review

A. contested cases = substantial evid. test
===was this reasonable in light of whole record.
--applies to the finding of facts only.

B. rulemaking and other agency action
====was the decision arbitrary, capricious, an abuse of discretion.



1. constitutional = violation of 1st amendment.

2. FTC is not allowed to regulate in this industries

3. FTC failed to give proper notice.

4. The finding of deception and fraud is not supported by evid.

5. remedy is too burdensome.

Front 11

what is the rule for sufficient evidence.

Back 11

less than perponderance of evid.

but reasonable mind would conclude = sufficient to support a particular conclusion.

Front 12

what are the 3 independent factors to see if there is a abuse of discretion.

Back 12

1. did agency consider any irrelevant factors.

2. did agency fail to consider any relevant factors

3. did agency fail to plausibly explain any apparent inconsistency (similar actions under the review and previous agencies in similar situation)

Front 13

How does gov go about judging agency actions

Back 13

1. agency discretion = crt will exercise discretion
if crt decides = agency action is illegal = crt will remand it and have agency redo it again.

2. lawfulness of agency action judge by actual chain of reasoning of decision makers = they dont want hypothesis here = real action.

3. Agency must be able to explain reasons for its decision.

4. Actions reasonably delayed = harmless error if no material change in condition during such delays.

5. preservation of issue = if you get the chance = preserve the issue.

6. appeal of judicial review.
= appellate crt review decisions of agency = NOT CIRCUIT COURT.

Front 14

what is the rule for ex parte communications.

Back 14

any oral or written communication that is not public record.

Front 15

what is the rule for prejudgment ( aka partial bias)

what are the factors to be considered for bias.

what is the standard of proof.

Back 15

Gen. disqualification decision makers only for prejudgement = specific facts in controversy

---assumption---
those who served are presumed to be fair and honest.
---but---
if not their decisions are voidable and not void.


1. decision maker has personal financial stake in the outcome.

2. if decision maker has been target of attack s by a party.

3. decision maker said something to public to show bias.

4. preponderance of evid. (unless provided or remand by law or agencies)

Front 16

what is the rule for procedural due process for noncontested cases

Back 16

Gen.

IAPA does not mandate any particular form of proceedings or fact gathering in a non-contested case.

Agency can have organic acts, agency rules or procedural safe guard.

but

if not then = process to be used = discretion of the agency and informal and hoc managerial decisionmaking = ok

Front 17

what does due process protect.

Back 17

must be

1. life

2. liberty.
a. freedom to travel
b. engage in a occupation
c. marry and raise a family.

3. property.
--must be protected by---
a. statute
b. constitution.

Front 18

what is the utilitarian 3 factor balancing test.

Back 18

courter weights

1. harm = to the private parties = deprivation.

2. governmental = interest in using less formal decision making procedural.

3. Utility ( in terms of improving accuracy of the decision) of additional procedural.

Front 19

what is the gen. point for due process rights.

ex =
Is sign language interpreter required for a deaf claimant for SS disability benefit.

what if the claim is for special edu. under state program for hearing impaired.

Back 19

DUE Process rights are determined by = generality of similar cases = not by particular facts of pending case.


ex 1 = no. bc most would not being hearing impaired.
--must think of the whole.

ex 2 =yes. bc the whole would need this.

Front 20

label these situations.

1. high school suspension 10 days

2. med school dismissal.

Back 20

1.
a. this is a property = yes

b. must give notice and get to hear your side of the story.

2.
a. property = yes, you can lose all your credit.

b. must be given notice of the issue and fix the conduct.

Front 21

what needs to be in a notice

How long is rule effective for

What is the timing requirement

Back 21

1. timing
--an agency may not adopt a rule until 45 days after notice is published in the illinois register--

2. content.
--must include--
a. proposed rule.
b. statutory citation.
c. description of issue involved.
d. description of research reports used in developing the rule.
and
E. time/place/ manner of public comment on the proposed rule.

3. comment = from all interested parties.

4. hearing =
a. hearing would facilitate public comment on proposal.
b. agency receives sufficient numbers of request for a hearing.

5. Notice of joint Committee on admin. rules.

6. filing: must file with secretary of state = rul ist must be made effective within 1 yr.

Front 22

what is the rule for emergency rulemaking.

what is the emergency def.

Back 22

can do it w/o notice or hearing. But it will only last for about 150 days.

------caveat------

no emergency rule may be adopted more than once in any 24 month period.

emergency exception= IAPA defines = existence of any situation that any agency finds reasonably constitutes a threat to the public interest, safety or welfare.

Front 23

What is needed for legislative ruling to be effective

Back 23

must be

1. within jurisdiction.

2. constitutional

3. binding on the crts.

Def.= rulemaking under the power to auth. of legislative power to delegate the power.

enabling act = provisions= agency may make all needful rules and regulations to carry out the purposes of this act.

Front 24

what is the interpretive rules for scope of review in state crt.

Back 24

scope of review = substituted judgement b/c

1. not an exercise of delegated statute writing power.

and

2. crt are final expositors of statute. = interpretive rule treated as merely agency's advisory view on how to read the organic acts.

Front 25

what is the open meeting act and what is similar to it in regards to fed. act.

Back 25

Sunshine act (fed) = open meeting act (state)

applies to all communication (online and phone meeting)

1. act requires public notice of and access to meetings of most state and local public bodies if a quorum of the members is present.

2. closed meetings.
--allowed---
if = discuss specific confidential subject listed in the open meeting act. ( security procedures, matters relating to individual student, pending litigations)

---for closed door meeting = agency must vote at an open meeting and then give notice to public,
which must stat the exception to being invoked--

Front 26

how does one go about commencing a action into the circuit

Element:

Proper party
Zoning board
Timing
Issues of summoning

Back 26

must be file complaint and issue a summons within 35 days from the date of copy of decision was served on the party affected by it.

elements:

1. proper party.
if all the name parties are missing or crt feels not all parties are included that should be = pl have 35 days from that date to name and serve the missing parties.

name: agency heads or directors.
complain may not be dismissed where pl names the agency but fails to name an individual member.

2. zoning board.

= for zoning: 500k or more
includes:
2a. zoning board of appeals or hearing officer
and
2b. applicants before the board or officers.

**Pl must notify anyone who testify b4 or submitted written instrument.**

**notice of action and the right to intervene must be sent by certified mail**
w/n 2 days of filing action.

3. time requirement.
--filing a complaint--
35 days period for filing a complain is a jurisdictional requirement. ( not SOL = cannot be waived)

4. Issue of summoning
--is not jurisdictional and maybe related in some circumstances--

Front 27

what is the rule for service of decision.

Back 27

if the statute governing the admin agency does not specify how a decision is to be served = decision will be deemed to have been served when it is either personally delivered or deposited within the mail.

Front 28

what is the rule for service of summons.

what is the exceptions.

Back 28

gen. summoon must be served on the agency of each and of other df by registered or certified mail.

--serve in main office.
and
--must mail a copy to any other df at their last known business or home address.

--------caveat (exceptions)---------

1. good faith exceptions
= 35 day period for issue summon = may be waived if litigant is done in good faith.

2. mere assumption that clerk crt will do it does not = good faith effort.
---litigant must make some affirmative steps---

Front 29

what is the limitations for pleadings.

Back 29

Unless, crt requires otherwise = only pleadings that may be filed = pl complaint and the agency answers.

Front 30

timing of judicial action.

---what is the rule for exhaustion of admin. remedies---

Back 30

contested case:

before crt invention = private parties must give agencies the fullest possible opportunity to correct its own mistake.

Exhaustion of agency remedy is not required: before crt action.

Ripeness: balancing factors

1. fitness of the issue for judicial resolution
2. hardship to the parties of delaying review.

Front 31

ill. admin. law.

1. what type of admin. action is involved


2. what is the plausible ground for judicial review

3. what are the proper scopes of review.

4. did the agency use correct procedural

Back 31

1. contested case
non-contested case
Rule making.

2. const. review
judicial review
procedural review
merits review

3. const. review: substituted judgment/ no deference
Jurisdictional review: substituted judgment/ some deference.
Procedural review: substituted judgment/ no deference
merits review:
contested case: substantial evid. test
rulemaking & other agency action: abuse
Gen. of principals of Judicial review.

4. contested case
ex-parte communication
prejudgement
standard of proof
non-contested cases
prop. or liberty: balancing test.
Rule making
procedures for rulemaking
legislative review and disapproval of rules
Open meeting act

Issue: have all conditions on obtaining judicial review been satisfied?

Commencing action in circuit crt
proper parties
time requirement
service of decision
service of summons
pleading
time of judicial review
exhaustion
ripeness
balancing test.