Indiana Bar Exam Administrative Law

Front 1

Admin Law: Opening statement and purpose

Back 1

Admin. Law governs the actions and decisions of government officials

within administrative agencies

and its purpose is to effectively deliver government services to the public

Front 2

Power of administrative agencies (3)

Back 2

1. Rulemaking (quasi -legislative)

2. Hearing and Adjudication (quasi - judicial)

3. Investigations - investigate matters subject to regulation

Front 3

Where do Admin. Agencies get this power?

Back 3

Under the Delegation Doctrine : Agencies derive their power from other sources (legislative/ executive branch) and the delegation of this authority is permissible if it is accompanied by REASONABLE & FEASIBLE standards.

Front 4

Agency Action must pass:

Back 4

Judicial Review : Compliance with

1. state statutory standards

2. US constitutional Due Process (14th am. notice + hearing)

3. Indiana Open Door Law (ODL)

4. Indiana Access to Public Records (PRA)

Front 5

Admin Rule Making (QL) : two types of rules

Back 5

Interpretive rules - statements by agency to advise public of agency's construction of statutes it administers

legislative rules - issued by agency to in order to implement a statute

Front 6

Admin Rule making: In order for a rule to be VALID it must:

Back 6

1. be statutorily authorized

2. have ascertainable standards (general applicability)

3. be promulgated properly under admin rule making and procedure act :(ARPA) -

Front 7

Rule promulgation: 12 steps to making a rule :

1-6

Back 7

1. Agency must begin rule promulgation w/in 60 days of the effective date of statute authorizing. (exception : Notification)

2. Notice of intent - published in register 28 days before adoption

3. $500,000 Notice - if possible impact greater

4. Preliminary adoption - (a) publish in register and (b) in Newspaper

5. Public hearing + opp for comment

6. consideration of comments + respond in writing

Front 8

12 steps to making a rule : 7-8

Back 8

7. Final rule adoption - so long as it does not substantially differ from preliminary rule (logical outgrowth)

8. AG approval (45 days inaction) - disapproval for "Cause" (a) does not comply with proocess (b) substantially differs (c) violates law OR is a TAKING : then AG must advise GOVERNOR + HEAD OF AGENCYs a TAKIN

Front 9

12 steps to making a rule: 9-12

Back 9

9. Governor Approval (15 days) : may approve or disapprove w or w/out cause

10. Filing with sec. of state (3 days) : to ensure correct form

11. Recall of Rule: (generally before filing)

12. One year: Deadline (within 1 yr.)

Front 10

Judicial review of Admin rule making is

Back 10

De Novo: Judical review of the admin. rulemaking

(a) lies within scope of authority

(b) consistent with and reasonably necessary to carry out purpose of statute

(c) reasonable

Front 11

Judicial review of Admin. Adjudication is

Back 11

Appeal : Judicial review of admin. adjudications

Front 12

Admin. Adjudications = Quasi - Judicial Function

General Rule:

Back 12

Admin. Adjudications are subject to Indiana AOPA

Front 13

Application of AOPA - (Admin. Orders and Procedures Act)

Back 13

1. applies to state exec. branch

2. creates statutory exceptions for certain state admin. agencies and actions

3. sets minimal procedural rights

Front 14

In order to adjudicate or review agency action

(to appeal what happend in the beginning stages: ex lost your license) you must have a petition for review.

Back 14

petition for review must

1. be in writing

2. state facts demonstrating petitioner is:

a. A person whom agency action is directed

b. aggrieved or adversely affected

c. Entitled to review

3. Filed w/ in 15 days of Agency action - if not filed w/in 15 days then order becomes effective.

Front 15

ALJ Qualification

Back 15

1. impartiality

2. No Bar License Necessary

3. No ex par te communications

___________________________________

Disqualification can be made

- bias

- making public comment about proceedings

- any cause for which a judge of of ct. can be disqualified

Front 16

Prohibited ALJ ex parte communications (P.I.P.P)

Back 16

ALJ cannot engage in ex parte communications with and individual who is a p.i. p.p

1. party to proceedings

2. Interested in outcome

3. Precided at previous proceeding

4. Prohibited (ex. investigator, prosecutor, advocate)

Front 17

ex parte communication occurs when ?

Back 17

a prohibited individual communicates with ALJ

(a) w/out notice and opporutnity for participation provided to all parties

(b) subject is relevant to the issue

Front 18

if Ex parte communication occurs then what must happen?

Back 18

1. ALJ must place on record

2. advise all parties that it was placed on record

3. Party may or may not have ALJ disqualified

Front 19

Notes about Admin. Adjudications

Back 19

1. Standard rules of evidence do not apply

2. Hearsay can be admitted but resulting order cannot be based on Hearsay

Front 20

Judicial review of Admin. Adjudications = _________ and reviewable decision are ________

Back 20

APPEAL

FINAL ADMINISTRATIVE ORDERS

Front 21

Judicial review of a Final Admin. Order is requires - This procedure

Back 21

1. filing of petition in appropriate court (jurisdiction and venue)

2. stating name/ addresses of petitioner and agency

4. identify agency and give (copy of action)

5. Stating facts that give rise to Jud. Review of the final order (SET)

(S) standing . (E) exhausted admin. remedies (T) Timely (object to order and petition for review w/in 30 days)

Front 22

Judicial review of a Final Admin. Order is usually limited to :

Back 22

Factual Review - of the original record

Issue Review - of the legal claims

* New issues only allowed if : (1) there was person who did not receive notice in compliance with AOPA or (2) interest of justice would be served

Front 23

In order to have INDIVIDUAL standing to bring a judicial review of a Final Admin. Order need:

Back 23

i. A person to whom the action was directed

ii. was a party to proceedings

iii. eligible for standing under any applicable law

or

iv. A person aggrieved or adversley affected by the agency action

Front 24

In order to have AGENCY standing to bring judicial review of a Final Admin. Order need:

Back 24

to be a "Party" to the original proceeding

Front 25

what is the standard of review for a Final Admin. Order ?

Back 25

A CAD CONED the JURY Pro Se

Front 26

A.C.A.D. CON.ed the JURI. PRO. SE means:

Back 26

An indvl. seeking judicial review of an admin. action must demonstrate the action was :

A- arbitrary

C- capricious

A- Abuse of

D - Discretion

CON - The agency action was against contiutional right, power, privledge or immunity

JURI- Agency action was excess of statutory jurisdictional authority, limitations, or right

PRO - Agency action was w/out observance of procedure required by law or

SE - agency action unsupported by substantial evidence.

Front 27

Due process is triggered when?

Back 27

Due process of law under section 1 of the 14th am. to the US constitution applies to adimin. proceedings - where there has been STATE ACTION

Front 28

If there has been state action then prodedural due process guarantees .......??

Back 28

the right to NOTICE and a HEARING for Administative Adjudications !!!

(NOT RULE MAKING)

Front 29

IN deciding whether there is a due process issue we must consider three things

Back 29

1. was there state action?

2. is there a deprivation of protected interest? (life, liberty, property)

3. if (yes) were the procedures sufficient?

* Remember due process challenge is a challenge to the adequacy of the process (not the decsion) and is independent from the decision.

Front 30

Whether procedures were sufficient will be determined by ??

Back 30

3 part balancing test

1. Interest of Individual

2. Government Interest

3. Value of additional process/ procedures against cost and fesibility

Front 31

PUBLIC INFO about Admin. Decisions - in Indiana 2 statutes require public information

Back 31

ODL - open door law

APRA - Access to public records act.

Front 32

compliance with ODL means ;

Back 32

Fullfilling notice req.

* 48 hrs before mtg. (Date, time, place)

* posted in a public place

maitaining agenda

* memoranda, and minutes (that are publicly available)