Indiana Administrative Law - Bar Exam

Front 1

What creates an administrative agency?

Back 1

Enabling Statutes

Front 2

What (3) three activities / powers, or roles can agencies engage in?

Back 2

1. Rulemaking
2. Adjudications
3. Investigations

Front 3

What is the key question in Admin. Law?

Back 3

Can the action pass judicial review?

Front 4

ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - What are the (3) three requirements of a valid rule?

[AS.SA.PP]

Back 4

1. Ascertainable Standards

2. Statutorily Authorized

3. Promulgated Properly

Front 5

ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - What are ascertainable standards?

Back 5

Standards that the regulated parties can "rely" on to determine the rule's effect.

Front 6

Quick 6 step overview of 12 step rule making process: 3 (pub, prelim, final) 3 (AG45 w/c, G15+15w or w/o c, SS3)

ALL YOU NEED FOR ESSAY ON 12 rule making process

Back 6

1. PUBLISH- notice of intent with Indiana Register 28 prior to preliminary adoption.--500k notice to overcite comittee if fiscal impact.

2.Preliminary Adoption- Publish entire text to IR and notice of hearing to newspaper 21 days prior to hearing.--Hearing;--Response to hearing

3.Final Rule Adoption: text cannot substantial differ from preliminary rule unless logical outgrowth from public comments.

4. AG 45 days to review (only w cause).

5. Govenor 15 days to review 15 more with good cause. reject w or w/o cause.

6.Secretary of state 3 days review. --can be recaled only prior to filing w secretary of state. -- entire process 1y.

Front 7

What is Step ( 1 ) of 12 in the Rulemaking Process?

Back 7

When Rules are to be made.

1. Earliest : before statute's effective date

2. Latest : 60 days after statute's effective date.

3. Exception: Just notify the rules oversight committee.

Front 8

What is Step ( 2 ) of 12 in the Rulemaking Process?

Back 8

Publish Notice of Intent In the Indiana Register - at least (28) thirty days prior to the rule preliminary adoption.

Front 9

What is Step ( 3 ) of 12 in the Rulemaking Process?

Back 9

If fiscal impact greater than $500,000; Notice to R.O.C. (Rules Oversight Committee)

Front 10

What is Step ( 4 ) of 12 in the Rulemaking Process?

Back 10

Preliminary Rule Adoption Completed if: Publication in Indiana Registry & Notice of hearing in general newspaper.

Front 11

What is Step ( 5 ) of 12 in the Rulemaking Process?

Back 11

Public Hearing and the Opportunity to make (written and oral) Comments

Front 12

What is Step ( 6 ) of 12 in the Rulemaking Process?

Back 12

Agency Consideration and Response to Comments in writing.

Front 13

What is Step ( 7 ) of 12 in the Rulemaking Process?

Back 13

Final Rule Adoption: Final version cannot substantially change from preliminary rule, unless changes are logicval outgrowth of public comments.

Front 14

What is Step ( 8 ) of 12 in the Rulemaking Process?

Back 14

Attorney General may onlt dissaprove for cause:

1. did not comply with promulgation process.

2. substantially differs from preliminary rule.

3. the rule violates the law.

Front 15

What is Step ( 9 ) of 12 in the Rulemaking Process?

Back 15

Governor's Approval w or w/o cause. 15 days to approve w/ 15 extension if notify secretary of state.

Front 16

What is Step ( 10 ) of 12 in the Rulemaking Process?

Back 16

Filed with Secretary of State, must review the rule within 3 days.

Front 17

What is Step ( 11 ) of 12 in the Rulemaking Process?

Back 17

Option to Recall: before filing with the secretary of state.

Front 18

What is Step ( 12 ) of 12 in the Rulemaking Process?

Back 18

One-Year Deadline

Front 19

OPENNESS - What are the (2) two public information laws rulemaking must comply with?

Back 19

1. Open Door Law

2. Access to Public Records Act

Front 20

JUDICIAL REVIEW - What standard of review will a court use for agency rulemaking?

Back 20

De Novo Review

Front 21

JUDICIAL REVIEW - How is administrative adjudication reviewed?

Back 21

As an Appeal.

Front 22

ADMINISTRATIVE ADJUDICATIONS - What function is the agency acting under when it is involved in adjudications? (9/24)

Back 22

The Quasi-Judicial Function

Front 23

ADMINISTRATIVE ADJUDICATIONS - What is application of AOPA?

Back 23

Administrative Orders and Procedures Act:

1. Applies only to state executive branch;

2. Creates statutory exceptions, and

3. Sets minimal procedural rights.

Front 24

"ALJs" - What is the basic grounds for an ALJ's qualification? (4/24)

Back 24

Impartiality

Front 25

"ALJs" - An ALJ is not allowed to engage in ex parte communications with?

Remember: (P.I.P.P)

Back 25

P: Part of the Proceedings

I: Interested parties

P: Presided earlier

P: Prohibited from contact

Front 26

"ALJs" - What (2) things make an "ex parte" communication prohibited.

Back 26

1. no opportunity for all to participate

2. about an issue relevant to the proceedings

Front 27

ADMINISTRATIVE HEARING PROCEDURES - Do the normal rules of evidence apply?

Back 27

No.

Front 28

ADMINISTRATIVE HEARING PROCEDURES - Can hearsay be admitted?

Back 28

Yes, but the decision cannot be based solely on hearsay.

Front 29

ADMINISTRATIVE HEARING PROCEDURES - If there is hearsay, and one party objects, what should the judge do?

Back 29

Sustain the objection, but admit the the testimony.

Front 30

JUDICIAL REVIEW - What are "reviewable" decisions? (9/24)

Back 30

Final Agency Orders; scope of review is appeal. unlike admin rulemakeing: de novo.

Front 31

JUDICIAL REVIEW - What evidence is allowed to be reviewed?

Back 31

The agency record

Front 32

JUDICIAL REVIEW - Can additional evidence be admitted outside the final agency record? If so, what?

Back 32

Yes.

It must be:

1) Necessary,
2) Not previously discoverable, and
3) Relevant.

Front 33

JUDICIAL REVIEW - In order to seek judicial review, a party must demonstrate what (3) things? (S.E.T)

Back 33

1. Standing

2. Exhaustion

3. Timeliness

Front 34

JUDICIAL REVIEW - What (4) four things qualify a party to have Standing?

Back 34

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.

Front 35

JUDICIAL REVIEW - What is Exhaustion?

Back 35

when all administrative remedies have been exhausted

Front 36

JUDICIAL REVIEW - What are the (3) three exceptions to exhaustion?

Back 36

1. Refusal
(of agency to dispose of claim),

2. Futility
(of exhausting administrative remedies), or

3. Purely Constitutional issues.

Front 37

JUDICIAL REVIEW - In regards to Timeliness, how long does a party have to petition for review after agency action?

Back 37

30 days

1) Object in a timely manner to the final order, or

2) file a petition for review.

Front 38

JUDICIAL REVIEW - What must the party prove the administrative action was to obtain judicial review? STANDARD: 6

[A.C.AD. CONed the JURI. PRO. S.E.]

Back 38

1. Arbitrary and Capricious

2. Abuse of Discretion

3. Against Constitution

4. No Jurisdiction

5. Procedure was Ignored

6. Unsupported by Substantial Evidence

Front 39

PROCEDURAL DUE PROCESS - What is the first thing required for a procedural due process claim? (3/24)

Back 39

State Action

Front 40

PROCEDURAL DUE PROCESS - What rights does the PDP clause guarantee?

Back 40

The right to notice and a hearing.

Front 41

PROCEDURAL DUE PROCESS - What are the (2) two basic PDP questions?

Back 41

1. Protected interest at stake (life, liberty, and property)?, and,

2. What process is due?

Front 42

PROCEDURAL DUE PROCESS - "What process is due?" (3) Three-Part Balancing Test?

Back 42

1. Individual Harm

2. vs. Government interest in current procedure, then

3. the value of additional process.

Front 43

PUBLIC ACCESS TO INFORMATION - What is the purpose of the Open Door Law? (2/24)

Back 43

To ensure access to agency meetings, does not include judiciary.

Front 44

PUBLIC ACCESS TO INFORMATION - Under the ODL, what qualifies as a meeting?

Back 44

A "majority of the body" - meeting for the purpose of taking "State Action".

Front 45

PUBLIC ACCESS TO INFORMATION - What are the (5) exceptions to the ODL's open meeting requirements?

[B.O.S.C.E.]

Back 45

1. Betterment Meetings

2. On-site Inspections

3. Social Gatherings

4. Caucuses

5. Executive Sessions

Front 46

PUBLIC ACCESS TO INFORMATION - What are the (4) four criteria for establishing an Executive Session?

Back 46

1. Final Action must still be in public,

2. Not intended to circumvent public,

3. 48 hours advanced notice,

4. For single statutory reasons.

Front 47

What (3) items must agencies maintain at all times in regards to meetings, hearings, etc...?

Back 47

1. agendas

2. memorandums, and

3. minutes

Front 48

(3) remedies against agency action for an agency violation of the ODL?

Back 48

1. Declaratory judgment

2. Injunction, or

3. Agency Order declared void.

Front 49

ACCESS to PUBLIC RECORDS ACT - What is the purpose of this act? (1/24)

Back 49

To give the public full and complete access to government information.

Front 50

ACCESS to PUBLIC RECORDS ACT - Which branches of government does this act apply to?

Back 50

All of them. executive, legislative, judicial, and administrative.

Purpose: There is a right to inspect and copy public records.

Front 51

ACCESS to PUBLIC RECORDS ACT - What is a public record?

Back 51

Anything the government has: 1) created, 2) received, 3) retained, 4) maintained, or 5) filed.

Front 52

ACCESS to PUBLIC RECORDS ACT - 1. How many exceptions are there to the APRA?

2. What are some common examples?

Back 52

1. 12

2. records declared confidential by law; trade secrets; grade transcripts; bar exam or license scores; autopsy photographs.

Front 53

ACCESS to PUBLIC RECORDS ACT - 1. How many "discretionary" exceptions are there to the APRA? 2. What are some common examples?

Back 53

1. 21

2. investigative records of law enforcement agencies; diaries of officials; and test questions used in licensing examinations.

Front 54

ACCESS to PUBLIC RECORDS ACT - What is the remedy for failing to comply with act?

Back 54

To Compel Inspection.

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