Barbri Illinois Administrative Law

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Subject Matter Jx of Agencies

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It is always limited and provided in the enabling statute

This is how agencies gain expertise (expertness). They encounter the same types of factual and technical issues over and over again

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Agency Powers

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Combination of legislative, executive and judicial

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Enabling Act

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AKA Organic Act

The statute by which the legislature creates the agency, specifies its jurisdiction and objectives and grants it powers

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Scope of Review

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AKA Standard of Review

This is the mandatory minimum weight or respect to which a court must give an agency decision

Courts only defer to agency decisions on which the agency has expertise

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Major Categories of Administrative Action

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Quasi-Judicial: Contested Case (IL) or Formal Adjudication (Feds)

Quasi-Executive: Non-Contested Case (IL) or Informal Adjudication (Feds)

Quasi-Legislative: Rulemaking

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Contested Case

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An adjudicatory proceeding in which the individual legal rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for a hearing

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Procedural Requirements of a Contested Case

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1. Right to present evidence
2. Knowledge of opposing evidence
3. Opportunity to test and rebut opposing evidence, AND
4. The decision must be based solely on evidence produced at the hearing

This is required by both state agencies and local government bodies under the Illinois Administrative Procedure Act (IAPA)

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Rulemaking

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Any agency statement of general applicability that implements applies, interprets, or prescribes law or policy.

This includes amendment and repeal

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The Following are Not Rulemaking

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1. Statements concerning only the internal management of an agency and not affect private rights of procedures available to persons or entities outside the agency
2. Declaratory rulings issued by an agency with respect to a specific set of facts and intended to apply only to those facts
3. Intra-agency memoranda
4. The prescription of standardized forms, or
5. Documents prepared or filed or actions taken by the Legislative Reference Bureau to codify statutes

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Grounds for Judicial Review of an Agency Action

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1. Constitutional
2, Jurisdictional
3. Procedural
4. Merits (factual/substantive)

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Scope of Constitutional Review

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Substituted judgment (de novo)

The court gives no deference to the agency decision

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Scope of Jurisdictional Review

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Substituted judgment

The court gives some deference

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Scope of Procedural Review

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Substituted judgment

The court gives no deference

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Scope for Contested Case Merits Review

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Substantial evidence test applies to findings of fact. Test looks at whether the finding is reasonable in light of the whole record

Abuse of discretion test applies to all other discretionary decisions such as, the appropriate sanction to be imposed

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Scope for Rulemaking and other Agency Action Merits Review

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Arbitrary and capricious standard (an abuse of discretion)

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Substantial Evidence Test

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Substantial evidence to support a factual finding consists of more than a mere scintilla but more than a preponderance of the evidence such that a reasoning mind would conclude that the evidence was sufficient to support a particular conclusion

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Abuse of Discretion Test

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Components:
1. Did the agency consider any irrelevant factor?
2. Did the agency fail to consider any relevant factor?
3. Did the agency fail to plausibly explain any apparent inconsistency between the action under review and a previous agency action in similar situations?

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Agency Discretion

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Courts will never exercise discretion that the legislature has lawfully vested in agency.

If the reviewing court finds agency action illegal, it sets the action aside but does not decide the issue. Instead the court remands to the agency to try again, this time exercising discretion legally

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Lawfulness of Agency Action

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The reasons actually relied upon by the agency itself must support the decision. The agency must explain the reasons for its decision

Administrative action will NOT be upheld merely because there is a conceivable adequate justification for the decision

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Unreasonable Delay in Action

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In IL, delay in rendering an administrative decision will not constitute error where there has been no material change in conditions during the delay

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Appeal of Judicial Review

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In a contested case or rulemaking, the appellate court reviews the decision of the agency and not the decision of the district court

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Ex Parte Communications

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Any oral or written communication that is not on the public record

Under the IAPA, except where allowed by law, administrative law judges and employees shall not, after notice of hearing in a contested case, engage in ex parte communications with parties or their representatives

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Prejudgment

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AKA bias or partiality

In general, a decision maker is disqualified only for prejudgment of specific facts in controversy.

Preformed opinion on law or policy is acceptable

In general, those who serve on administrative tribunals are presumed fair and honest, but if one member of an administrative body in not disinterested, his participation infects the action of the whole body and makes it voidable

Prejudgment can also be shown if the decision maker has a personal financial stake in the outcome, has been the target of attacks by a party, or prior to the hearing has said something about the case in public that would tend to indicate that he has prejudged the facts

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Standard of Proof

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It is by a preponderance of the evidence unless another standard is provided by law or agency rule

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Procedural Requirements for Non-Contested Cases

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No particular form of proceeding or fact gathering is required by the IAPA

the Agency Organic Act, an Agency Rule or procedural Due Process may mandate certain minimum procedural safeguards

If none are specified than the process to be used is within the discretion of the agency, and informal ad hoc managerial decision making is permitted

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Applicability of Due Process

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Only applies when a life, liberty or property interest is at stake

The Court weighs:
1. Harm to the private party that would result from erroneous deprivation
2. Governmental interest in using less formal decision making procedures (including interest in minimizing costs), AND
3. Utility (in terms of improving accuracy of the decision) of the additional procedure

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Determination of Due Process Rights

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Determined by looking at similar cases in general, NOT by looking at the particular facts of the pending case

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Due Process for School Suspension

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Property interest is at stake because a student can only be suspended for misconduct

Student has a right to notice, explanation of evidence, and an opportunity to tell his story

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Due Process for Medical School Dismissal

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Property interest is at stake if there is a faculty rule stating the dismissal can only be made for lack of performance

Student has a right to notice and to be given the opportunity to correct the problem

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Due Process for Solitary Confinement

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Liberty interest is at stake because solitary confinement may only be required for threats to safety

Prisoner has a right to review the evidence and respond in writing

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Due Process for Loss of School Credit for Lack of Attendance

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Property interest is at stake because credit may only be revoked for non-attendance

Student has a right to a contested case type hearing

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Rulemaking Procedures

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Governed by the IAPA

1. Notice to the public
2. Comments on the proposed rule from all interested persons
3. Public hearing if it would facilitate public comment or if the agency receives sufficient number of requests for a hearing
4. Notice to the Joint Committee on Administrative Rules
5. Filing of the final rule with the Secretary of State

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Emergency Exception to Rulemaking Procedures

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Emergency under the IAPA is the existence of any situation that any agency finds reasonably constitutes a threat to the public interest, safety or welfare

Emergency rules may be filed without notice or a hearing. However, emergency rules are only valid for 150 days

No emergency rule may be adopted more than once within any 24 month period

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Notice to the Public

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A rule may not be adopted until 45 days after notice has been published in the Illinois Registrer

The notice must include:
1. The text of the proposed rule
2. Any applicable statutory citations
3. A description of the issues involved
4. Descriptions of research reports used in developing the rule, AND
5. The time, place and manner for public comment on the proposed rule

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Notice to Joint Committee on Administrative Rules

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Written notice must be given to JCAR, a legislative support committee that monitors and investigates agency regulations and rulemaking activities.

JCAR may object or suggest changes to the proposed rule

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Legislative Rules

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Rulemaking under the authority of a legislative delegation of power

If valid, they have the force and effect of law

It is treated like a statute and is therefore binding on the courts

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Interpretive Rules

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Interpretive rules are treated as merely an agency's advisory views on how to read its organic act

Scope of review in state courts is substituted judgment it is not an exercise of delegated statute-writing power, and the courts are the final expositor of statutes

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Illinois Open Meetings Act

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Requires the public notice of and access to meetings of most state and local public bodies if a quorum of the members is present (including phone and online meetings)

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Closed Meetings

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Meetings may be closed to the public where an agency will discuss specific confidential subjects listed in the Open Meetings Act

To close a meeting, the agency must vote at an open meeting and then give notice to the public, which must state the exception being invoked

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Commencing Action in the Circuit Court

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A complaint must be filed and summons issued within 35 days from the date that a copy of the decision was served on the party affected by it

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Proper Parties

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Under the Administrative Review Law, the agency and all parties of record to the proceedings before it are to be included as defendants.

If the court determines during review that a required party, including the agency itself, was not made a defendant, it must grant plaintiff 35 days from that date to name and serve the missing party

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Parties Named in the Complaint

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Naming the agency heads or directors in their official capacity serves as naming the agency itself. A complaint may not be dismissed where a plaintiff names the agency but fails to name an individual member

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Proper Parties for Zoning Board Decisions in Large Cities

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For zoning board decisions either in counties or municipalities of more than 500,000 people, parties of record include only the zoning board of appeals or hearing officer and applicants before the board or officer

Plaintiff also must notify anyone who testified before or submitted written instruments to the board in the decision being appealed. Notice of the action and the right to intervene must be sent by certified mail within two days of filing the action

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Service of Decision

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If the statute governing the administrative agency does not specify how a decision is to be served, the decision will be deemed to have been served when it is either personally delivered, or deposited in the mail

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Service of Summons

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Generally, the summons must be served on the agency and each of the other defendants by registered or certified mail

The clerk of the court must serve an administrative agency at its main office, and must also mail a copy of the summons to any other defendants at their last known business or home address

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Good Faith Exception to Service of the Summons

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Because the 35 day period for issuing a summons is in place to avoid undue delay, the requirement may be relaxed where the litigant makes a good faith effort to issue a summons within the statutory period

However, the mere assumption that the clerk of the court will issue the summons does not constitute a good faith effort. The litigant must take some affirmative step, and should advise the clerk of the time limitation and provide the parties proper addresses

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Pleadings

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The only pleadings that may be filed are the plaintiff's complaint and the agency's answer unless the court requires otherwise

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Timing of Judicial Action in a Contested Case

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Before seeking court intervention, private parties must give the agency the fullest possible opportunity to correct its own mistakes.

Plaintiff must use all the process that the agency gives

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Timing of Judicial Action in Rulemaking

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In a declaratory judgment action challenging the validity of an agency, exhaustion is not required if:
1. The agency could not provide an adequate remedy
2. The only issues presented involved questions of law, OR
3. Requiring exhaustion might cause irreparable injury

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Ripeness

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Even though an agency decision may be fixed, courts may delay judicial review if they think it will improve the quality of judicial decision making without undue harm to the complaining party

Usually becomes an issue in the judicial review of rulemaking

The Court balances the present fitness of the issues for judicial resolution against the hardship to the parties of delaying review

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Determining whether Agency Action will Survive Judicial Review

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Ask:
1. What type of administrative action is involved?
2. What are the plausible grounds for judicial review?
3. What are the proper scopes of review?
4. Did the Agency use the correct procedure?
5. Have all the conditions on obtaining judicial review been satisfied?