Indiana Administrative Law - Bar Exam Illi Wisconsinnto

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 - The BMV promulgates a rule allowing points to be assessed for speeds 1 mile below the statutory maximum limit. Is this rule valid?

Back 5

NO. This rule exceeds agency authority.

Ultra Viries

Front 6

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

Back 6

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

Front 7

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?

Back 7

NO. This rule lacks ascertainable standards

Front 8

12 STEP RULEMAKING PROCESS - What is the earliest date a rule can be made?

Back 8

Before the statute's effective date.

Front 9

12 STEP RULEMAKING PROCESS - When is the latest date a rule can be made?

Back 9

60 days after the statute's effective date.

Front 10

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?

Back 10

Publish notice of intent.

Front 11

12 STEP RULEMAKING PROCESS - When and where must an agency publish its notice of intent?

Back 11

In the Indiana Register - at least (30) thirty days prior to the rule preliminary adoption.

Front 12

12 STEP RULEMAKING PROCESS - If the fiscal impact of the proposed rule will be greater than _________, it must notify the _____________________?

Back 12

1. $500,000
2. Rule Oversight Committee

Front 13

12 STEP RULEMAKING PROCESS - Preliminary Adoption of a rule is completed by what (2) two things?

Back 13

1. Publishing the preliminary rule in the register, and

2. Giving the public "notice" of the rule in a general newspaper.

Front 14

12 STEP RULEMAKING PROCESS - what must the public have the right to do at the hearing?

Back 14

Make oral or written comments.

Front 15

12 STEP RULEMAKING PROCESS - Does the Agency have to consider those comments, and if yes, what are they required to do?

Back 15

Yes. Then they must respond to the comments in writing.

Front 16

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.

Back 16

1. change
2. substantially differ
3. logical outgrowth

- then the final version is adopted by the agency's final authority.

Front 17

12 STEP RULEMAKING PROCESS - After final rule adoption by the agency, who do they submit the rule to?

Back 17

- the Attorney General

Front 18

12 STEP RULEMAKING PROCESS - Can the Attorney General disapprove of the rule?

Back 18

Only for Cause.

Front 19

12 STEP RULEMAKING PROCESS - What three reasons are sufficient for the AG to disapprove of a rule "for cause"?

Back 19

1. did not comply with promulgation process.

2. substantially differs from preliminary rule.

3. the rule violates the law.

Front 20

12 STEP RULEMAKING PROCESS - If the AG believes the rule is a taking, what (2) two people must he inform?

Back 20

1. The Governor

2. Head of the Agency

Front 21

12 STEP RULEMAKING PROCESS - If the AG does not approve the rule within _________ days, the rule is then deemed _________?

Back 21

1. 45 days,

2. approved

Front 22

12 STEP RULEMAKING PROCESS - Can the Governor disapprove the rule without cause?

Back 22

Yes.

Front 23

12 STEP RULEMAKING PROCESS - How long does the Governor have to review a rule, before his inaction is deemed an approval?

Back 23

15 days. He can request an extra 15 days.

Front 24

12 STEP RULEMAKING PROCESS - Who receives the rule after the Governor has approved it?

Back 24

The Secretary of State.

Front 25

12 STEP RULEMAKING PROCESS - What is the Secretary of State looking for in the rule, and how long does he have to do it?

Back 25

1. Appropriate form.

2. 3 days

Front 26

12 STEP RULEMAKING PROCESS - May an agency recall a rule before filing it with the Secretary of State?

Back 26

Yes.

Front 27

12 STEP RULEMAKING PROCESS - How much time does the agency have to complete the entire rulemaking process?

Back 27

One year.

Front 28

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

Back 28

When Rules are to be made.

Front 29

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

Back 29

Publish Notice of Intent.

Front 30

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

Back 30

$500,000 Notice to R.O.C.

Front 31

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

Back 31

Preliminary Rule Adoption: Publication & Notice

Front 32

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

Back 32

Public Hearing and the Opportunity to Comment

Front 33

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

Back 33

Agency Consideration and Response to Comments.

Front 34

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

Back 34

Final Rule Adoption

Front 35

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

Back 35

Attorney General Approval

Front 36

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

Back 36

Governor's Approval

Front 37

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

Back 37

Filed with Secretary of State

Front 38

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

Back 38

Option to Recall

Front 39

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

Back 39

One-Year Deadline

Front 40

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

Back 40

1. Open Door Law

2. Access to Public Records Act

Front 41

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

Back 41

De Novo Review

Front 42

JUDICIAL REVIEW - How is administrative adjudication reviewed?

Back 42

As an Appeal.

Front 43

ADMINISTRATIVE ADJUDICATIONS - What function is the agency acting under when it is involved in adjudications?

Back 43

The Quasi-Judicial Function

Front 44

ADMINISTRATIVE ADJUDICATIONS - What does AOPA stand for?

Back 44

Administrative Orders and Procedures Act

Front 45

ADMINISTRATIVE ADJUDICATIONS - What does AOPA regulate?

Back 45

Administrative Adjudication

Front 46

ADMINISTRATIVE ADJUDICATIONS - What branch of government does AOPA exclusively concern?

Back 46

The "State" Executive Branch

Front 47

ADMINISTRATIVE ADJUDICATIONS - Does AOPA concern local agencies?

Back 47

NO. AOPA only applies to statewide executive agencies.

Front 48

ADMINISTRATIVE ADJUDICATIONS - What is the main function of AOPA?

Back 48

To set minimal procedural rights for agency adjudication.

Front 49

"ALJs" - What is the basic grounds for an ALJ's qualification?

Back 49

Impartiality

Front 50

"ALJs" - Does an ALJ need a bar license?

Back 50

NO.

Front 51

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

Remember: (P.I.P.P)

Back 51

P: Part of the Proceedings

I: Interested parties

P: Presided earlier

P: Prohibited from contact

Front 52

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

Back 52

1. no opportunity for all to participate

2. about an issue relevant to the proceedings

Front 53

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

Back 53

No.

Front 54

ADMINISTRATIVE HEARING PROCEDURES - Can hearsay be admitted?

Back 54

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

Front 55

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

Back 55

Sustain the objection, but admit the the testimony.

Front 56

JUDICIAL REVIEW - What are "reviewable" decisions?

Back 56

Final Agency Orders

Front 57

JUDICIAL REVIEW - What evidence is allowed to be reviewed?

Back 57

The agency record

Front 58

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

Back 58

Yes.

It must be:

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

Front 59

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

Back 59

1. Standing

2. Exhaustion

3. Timeliness

Front 60

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

Back 60

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 61

JUDICIAL REVIEW - What is Exhaustion?

Back 61

when all administrative remedies have been exhausted

Front 62

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

Back 62

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

2. Futility
(of exhausting administrative remedies), or

3. Purely Constitutional issues.

Front 63

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

Back 63

30 days

Front 64

JUDICIAL REVIEW - To preserve the right to judicial review, what must a person do to maintain timeliness?

Back 64

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

2) file a petition for review.

Front 65

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

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

Back 65

1. Arbitrary and Capricious

2. Abuse of Discretion

3. Against Constitution

4. No Jurisdiction

5. Procedure was Ignored

6. Unsupported by Evidence

Front 66

PROCEDURAL DUE PROCESS - What is the first thing required for a procedural due process claim?

Back 66

State Action

Front 67

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

Back 67

The right to notice and a hearing.

Front 68

PROCEDURAL DUE PROCESS - Is the PDP clause limited to adjudication?

Back 68

Yes.

Front 69

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

Back 69

1. Protected interest at stake?, and,

2. What process is due?

Front 70

PROCEDURAL DUE PROCESS - Does a PDP claim challenge the 1)adequacy of the process, 2) the substance of the decision, or 3) both?

Back 70

1. Limited to procedural claims.

Front 71

PROCEDURAL DUE PROCESS - What would be considered a protected interest?

Back 71

A deprivation of a Life, Liberty, or Property Interest?

Front 72

PROCEDURAL DUE PROCESS - (3) Three big examples of protected "LIBERTY" interests.

Back 72

1. Right to Travel

2. Marriage

3. Having Children

Front 73

PROCEDURAL DUE PROCESS - To raise a "deprivation of property" claim, what must you first have?

Back 73

A legitimate claim of entitlement.

Front 74

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

Back 74

1. Individual Harm

2. vs. Government interest in current procedure, then

3. the value of additional process.

Front 75

PUBLIC ACCESS TO INFORMATION - What is the purpose of the Open Door Law?

Back 75

To ensure access to agency meetings

Front 76

PUBLIC ACCESS TO INFORMATION - Does the ODL only apply to State or Local agencies?

Back 76

Both

Front 77

PUBLIC ACCESS TO INFORMATION - Does the ODL apply to all branches of government?

Back 77

NO. There is no "open door" access to Judicial meetings.

Front 78

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

Back 78

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

Front 79

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

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

Back 79

1. Betterment Meetings

2. On-site Inspections

3. Social Gatherings

4. Caucuses

5. Executive Sessions

Front 80

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

Back 80

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 81

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

Back 81

1. agendas

2. memorandums, and

3. minutes

Front 82

NOTICE REQUIREMENTS - How long before the meeting must notice be given?

Back 82

48 hours

Front 83

NOTICE REQUIREMENTS - What must a public notice contain?

Back 83

Date, Place, and Time

Front 84

NOTICE REQUIREMENTS - If an agency wants to give public notice of a meeting, where must they post that notice?

Back 84

At the agency's principal office, 48 hours in advance, giving Time, Place, and Date.

Front 85

NOTICE REQUIREMENTS - Does the media have a right to notice mailed to them?

Back 85

Yes. If they requested it that year.

Front 86

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.

Back 86

1. Agendas

2. Memoranda

3. Minutes

Front 87

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

Back 87

1. Declaratory judgment

2. Injunction, or

3. Agency Order declared void.

Front 88

Does a party have to have standing to challenge agency action under ODL?

Back 88

NO.

Front 89

ACCESS to PUBLIC RECORDS ACT - What is the purpose of this act?

Back 89

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

Front 90

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

Back 90

All of them.

Front 91

ACCESS to PUBLIC RECORDS ACT - What is the General Rule of this act?

Back 91

There is a right to inspect and copy public records.

Front 92

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

Back 92

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

Front 93

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

2. What are some common examples?

Back 93

1. 12

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

Front 94

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

Back 94

1. 21

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

Front 95

ACCESS to PUBLIC RECORDS ACT - How does a citizen request a public record?

Back 95

On the record, with particularity, or by writing the request by agency request.

Front 96

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

Back 96

To Compel Inspection.

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