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96 Cards in this Set

  • Front
  • Back
What creates an administrative agency?
Enabling Statutes
What (3) three activities / powers, or roles can agencies engage in?
1. Rulemaking
2. Adjudications
3. Investigations
What is the key question in Admin. Law?
Can the action pass judicial review?
ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - What are the (3) three requirements of a valid rule?

[AS.SA.PP]
1. Ascertainable Standards

2. Statutorily Authorized

3. Promulgated Properly
ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - The BMV promulgates a rule allowing points to be assessed for speeds 1 mile below the statutory maximum limit. Is this rule valid?
NO. This rule exceeds agency authority.

Ultra Viries
ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - What are ascertainable standards?
Standards that the regulated parties can "rely" on to determine the rule's effect.
ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - The BMV promulgates a rule allowing points to be assessed for speeding violations on a case-by-case basis. Is this rule valid?
NO. This rule lacks ascertainable standards
12 STEP RULEMAKING PROCESS - What is the earliest date a rule can be made?
Before the statute's effective date.
12 STEP RULEMAKING PROCESS - When is the latest date a rule can be made?
60 days after the statute's effective date.
12 STEP RULEMAKING PROCESS - What does an agency have to do when it wants to notify the public that it wants to adopt a rule?
Publish notice of intent.
12 STEP RULEMAKING PROCESS - When and where must an agency publish its notice of intent?
In the Indiana Register - at least (30) thirty days prior to the rule preliminary adoption.
12 STEP RULEMAKING PROCESS - If the fiscal impact of the proposed rule will be greater than _________, it must notify the _____________________?
1. $500,000
2. Rule Oversight Committee
12 STEP RULEMAKING PROCESS - Preliminary Adoption of a rule is completed by what (2) two things?
1. Publishing the preliminary rule in the register, and

2. Giving the public "notice" of the rule in a general newspaper.
12 STEP RULEMAKING PROCESS - what must the public have the right to do at the hearing?
Make oral or written comments.
12 STEP RULEMAKING PROCESS - Does the Agency have to consider those comments, and if yes, what are they required to do?
Yes. Then they must respond to the comments in writing.
12 STEP RULEMAKING PROCESS - In response to public comments, the agency may ___________ the rule prior to final adoption. The final version cannot ___________
_________ from the preliminary rule, unless changes are a _________ __________ of the public comment.
1. change
2. substantially differ
3. logical outgrowth

- then the final version is adopted by the agency's final authority.
12 STEP RULEMAKING PROCESS - After final rule adoption by the agency, who do they submit the rule to?
- the Attorney General
12 STEP RULEMAKING PROCESS - Can the Attorney General disapprove of the rule?
Only for Cause.
12 STEP RULEMAKING PROCESS - What three reasons are sufficient for the AG to disapprove of a rule "for cause"?
1. did not comply with promulgation process.

2. substantially differs from preliminary rule.

3. the rule violates the law.
12 STEP RULEMAKING PROCESS - If the AG believes the rule is a taking, what (2) two people must he inform?
1. The Governor

2. Head of the Agency
12 STEP RULEMAKING PROCESS - If the AG does not approve the rule within _________ days, the rule is then deemed _________?
1. 45 days,

2. approved
12 STEP RULEMAKING PROCESS - Can the Governor disapprove the rule without cause?
Yes.
12 STEP RULEMAKING PROCESS - How long does the Governor have to review a rule, before his inaction is deemed an approval?
15 days. He can request an extra 15 days.
12 STEP RULEMAKING PROCESS - Who receives the rule after the Governor has approved it?
The Secretary of State.
12 STEP RULEMAKING PROCESS - What is the Secretary of State looking for in the rule, and how long does he have to do it?
1. Appropriate form.

2. 3 days
12 STEP RULEMAKING PROCESS - May an agency recall a rule before filing it with the Secretary of State?
Yes.
12 STEP RULEMAKING PROCESS - How much time does the agency have to complete the entire rulemaking process?
One year.
What is Step ( 1 ) of 12 in the Rulemaking Process?
When Rules are to be made.
What is Step ( 2 ) of 12 in the Rulemaking Process?
Publish Notice of Intent.
What is Step ( 3 ) of 12 in the Rulemaking Process?
$500,000 Notice to R.O.C.
What is Step ( 4 ) of 12 in the Rulemaking Process?
Preliminary Rule Adoption: Publication & Notice
What is Step ( 5 ) of 12 in the Rulemaking Process?
Public Hearing and the Opportunity to Comment
What is Step ( 6 ) of 12 in the Rulemaking Process?
Agency Consideration and Response to Comments.
What is Step ( 7 ) of 12 in the Rulemaking Process?
Final Rule Adoption
What is Step ( 8 ) of 12 in the Rulemaking Process?
Attorney General Approval
What is Step ( 9 ) of 12 in the Rulemaking Process?
Governor's Approval
What is Step ( 10 ) of 12 in the Rulemaking Process?
Filed with Secretary of State
What is Step ( 11 ) of 12 in the Rulemaking Process?
Option to Recall
What is Step ( 12 ) of 12 in the Rulemaking Process?
One-Year Deadline
OPENNESS - What are the (2) two public information laws rulemaking must comply with?
1. Open Door Law

2. Access to Public Records Act
JUDICIAL REVIEW - What standard of review will a court use for agency rulemaking?
De Novo Review
JUDICIAL REVIEW - How is administrative adjudication reviewed?
As an Appeal.
ADMINISTRATIVE ADJUDICATIONS - What function is the agency acting under when it is involved in adjudications?
The Quasi-Judicial Function
ADMINISTRATIVE ADJUDICATIONS - What does AOPA stand for?
Administrative Orders and Procedures Act
ADMINISTRATIVE ADJUDICATIONS - What does AOPA regulate?
Administrative Adjudication
ADMINISTRATIVE ADJUDICATIONS - What branch of government does AOPA exclusively concern?
The "State" Executive Branch
ADMINISTRATIVE ADJUDICATIONS - Does AOPA concern local agencies?
NO. AOPA only applies to statewide executive agencies.
ADMINISTRATIVE ADJUDICATIONS - What is the main function of AOPA?
To set minimal procedural rights for agency adjudication.
"ALJs" - What is the basic grounds for an ALJ's qualification?
Impartiality
"ALJs" - Does an ALJ need a bar license?
NO.
"ALJs" - An ALJ is not allowed to engage in ex parte communications with?

Remember: (P.I.P.P)
P: Part of the Proceedings

I: Interested parties

P: Presided earlier

P: Prohibited from contact
"ALJs" - What (2) things make an "ex parte" communication prohibited.
1. no opportunity for all to participate

2. about an issue relevant to the proceedings
ADMINISTRATIVE HEARING PROCEDURES - Do the normal rules of evidence apply?
No.
ADMINISTRATIVE HEARING PROCEDURES - Can hearsay be admitted?
Yes, but the decision cannot be based solely on hearsay.
ADMINISTRATIVE HEARING PROCEDURES - If there is hearsay, and one party objects, what should the judge do?
Sustain the objection, but admit the the testimony.
JUDICIAL REVIEW - What are "reviewable" decisions?
Final Agency Orders
JUDICIAL REVIEW - What evidence is allowed to be reviewed?
The agency record
JUDICIAL REVIEW - Can additional evidence be admitted outside the final agency record? If so, what?
Yes.

It must be:

1) Necessary,
2) Not previously discoverable, and
3) Relevant.
JUDICIAL REVIEW - In order to seek judicial review, a party must demonstrate what (3) things?
1. Standing

2. Exhaustion

3. Timeliness
JUDICIAL REVIEW - What (4) four things qualify a party to have Standing?
1. the action was directed at them,

2. they were a party to the proceedings,

3. the law gives them standing, or

4. personalized harm.
JUDICIAL REVIEW - What is Exhaustion?
when all administrative remedies have been exhausted
JUDICIAL REVIEW - What are the (3) three exceptions to exhaustion?
1. Refusal
(of agency to dispose of claim),

2. Futility
(of exhausting administrative remedies), or

3. Purely Constitutional issues.
JUDICIAL REVIEW - In regards to Timeliness, how long does a party have to petition for review after agency action?
30 days
JUDICIAL REVIEW - To preserve the right to judicial review, what must a person do to maintain timeliness?
1) Object in a timely manner to the final order, or

2) file a petition for review.
JUDICIAL REVIEW - What must the party prove the administrative action was to obtain judicial review?

[A. C.AD. CONed the JURI. PRO. S.E.]
1. Arbitrary and Capricious

2. Abuse of Discretion

3. Against Constitution

4. No Jurisdiction

5. Procedure was Ignored

6. Unsupported by Evidence
PROCEDURAL DUE PROCESS - What is the first thing required for a procedural due process claim?
State Action
PROCEDURAL DUE PROCESS - What rights does the PDP clause guarantee?
The right to notice and a hearing.
PROCEDURAL DUE PROCESS - Is the PDP clause limited to adjudication?
Yes.
PROCEDURAL DUE PROCESS - What are the (2) two basic PDP questions?
1. Protected interest at stake?, and,

2. What process is due?
PROCEDURAL DUE PROCESS - Does a PDP claim challenge the 1)adequacy of the process, 2) the substance of the decision, or 3) both?
1. Limited to procedural claims.
PROCEDURAL DUE PROCESS - What would be considered a protected interest?
A deprivation of a Life, Liberty, or Property Interest?
PROCEDURAL DUE PROCESS - (3) Three big examples of protected "LIBERTY" interests.
1. Right to Travel

2. Marriage

3. Having Children
PROCEDURAL DUE PROCESS - To raise a "deprivation of property" claim, what must you first have?
A legitimate claim of entitlement.
PROCEDURAL DUE PROCESS - "What process is due?" (3) Three-Part Balancing Test?
1. Individual Harm

2. vs. Government interest in current procedure, then

3. the value of additional process.
PUBLIC ACCESS TO INFORMATION - What is the purpose of the Open Door Law?
To ensure access to agency meetings
PUBLIC ACCESS TO INFORMATION - Does the ODL only apply to State or Local agencies?
Both
PUBLIC ACCESS TO INFORMATION - Does the ODL apply to all branches of government?
NO. There is no "open door" access to Judicial meetings.
PUBLIC ACCESS TO INFORMATION - Under the ODL, what qualifies as a meeting?
A "majority of the body" - meeting for the purpose of taking "State Action".
PUBLIC ACCESS TO INFORMATION - What are the (5) exceptions to the ODL's open meeting requirements?

[B.O.S.C.E.]
1. Betterment Meetings

2. On-site Inspections

3. Social Gatherings

4. Caucuses

5. Executive Sessions
PUBLIC ACCESS TO INFORMATION - What are the (4) four criteria for establishing an Executive Session?
1. Final Action must still be in public,

2. Not intended to circumvent public,

3. 48 hours advanced notice,

4. For single statutory reasons.
What (3) items must agencies maintain at all times in regards to meetings, hearings, etc...?
1. agendas

2. memorandums, and

3. minutes
NOTICE REQUIREMENTS - How long before the meeting must notice be given?
48 hours
NOTICE REQUIREMENTS - What must a public notice contain?
Date, Place, and Time
NOTICE REQUIREMENTS - If an agency wants to give public notice of a meeting, where must they post that notice?
At the agency's principal office, 48 hours in advance, giving Time, Place, and Date.
NOTICE REQUIREMENTS - Does the media have a right to notice mailed to them?
Yes. If they requested it that year.
1. __________, if used, must be posted at the meetings.

2. __________, are required, and must provide basic details about the meeting.

3. __________, if taken, must be made pubic for viewing and copying.
1. Agendas

2. Memoranda

3. Minutes
(3) remedies against agency action for an agency violation of the ODL?
1. Declaratory judgment

2. Injunction, or

3. Agency Order declared void.
Does a party have to have standing to challenge agency action under ODL?
NO.
ACCESS to PUBLIC RECORDS ACT - What is the purpose of this act?
To give the public full and complete access to government information.
ACCESS to PUBLIC RECORDS ACT - Which branches of government does this act apply to?
All of them.
ACCESS to PUBLIC RECORDS ACT - What is the General Rule of this act?
There is a right to inspect and copy public records.
ACCESS to PUBLIC RECORDS ACT - What is a public record?
Anything the government has: 1) created, 2) received, 3) retained, 4) maintained, or 5) filed.
ACCESS to PUBLIC RECORDS ACT - 1. How many exceptions are there to the APRA?

2. What are some common examples?
1. 12

2. records declared confidential by law; trade secrets; grade transcripts; bar exam or license scores; autopsy photographs.
ACCESS to PUBLIC RECORDS ACT - 1. How many "discretionary" exceptions are there to the APRA? 2. What are some common examples?
1. 21

2. investigative records of law enforcement agencies; diaries of officials; and test questions used in licensing examinations.
ACCESS to PUBLIC RECORDS ACT - How does a citizen request a public record?
On the record, with particularity, or by writing the request by agency request.
ACCESS to PUBLIC RECORDS ACT - What is the remedy for failing to comply with act?
To Compel Inspection.

Note: Attorney's fees are discretionary. (the P must substantially prevail, and the D must show the action was frivolous).