Wa Bar Administrative Law

Front 1

Is this an Admin Law Bar Question?

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A. Is there a State or local agency (bd, agency, dept. commission, etc. . . ) taking action against an individual OR
B. Has legislature given authority in statute to agency to implement legislative policy through writing rules? AND
C. Significant constitutional law issue also raised (like EP, PDP, SDP, Void for vagueness, 1st am., Standing, ripeness)?

Front 2

The APA: Definition

Back 2

a. Definition – It tells agencies when and how they can write rules and regulations. When and how they must apply administrative hearings, and tells courts when and how they will review an agency decision

Front 3

The APA: Applies to

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b. Applies to – almost all WA state agencies, bds of universities and colleges with regards to personnel decisions, and local agencies only if they are performing a state function or applying state law

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The APA: Does not apply to

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c. Does not apply to – Other local agencies doing local things, Atty general’s office, DOC in regards to disciplinary hearings, legislative or judicial branches (includes WSBA)

Front 5

If its an admin law question, what law applies?

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A. Federal or state constitution - either or both will be in play
B. State Administrative Procedures Act
C. Look at the agency's own statute or regulations discussed in the question
D. For local governmental units performing only local functions, common law and constitutional law applies, not the APA

Front 6

Identify Agency Action: 4 types

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analyze each separately. Review of legality will depend on classification.
A. Administration (executive ) – does A have power to administer rule or policy
B. Rulemaking (legislative) – Does A follow APA guidelines when promulgating rule
C. Adjudication (court) – Did agency follow const. due process or APA hearing req.
D. Investigative (police) – Did Agency violate the const? warrant req. and what not

Front 7

Agency Action: Administering Policies - may need to discuss two issues

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A. Was the agency legally formed? Legislation that creates an agency is called Enabling Legislation
a. No if the legislature failed to properly DELEGATE authority to act
b. the enabling legislation has NO STANDARDS by which to judge what POWER an agency has
c. without standards the agency action can be arbitrary or abusive – the agency action shall be voided
d. Cts only require some minimal direction in statute or legislative history about the nature of agency’s power

Remember: Legislators must Delegate, and the agencies must dance to that music.

B. Did the agency exceed its authority? Ultra Vires
a. When an action goes beyond the power give in its enabling legislation

Front 8

Agency Action: Rule Making

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A. Does the agency have authority to make the rule? Ultra Vires
B. Is there a rule? If agency takes action against a person w/o a published rule, the action is unenforceable
C. Does the agency promulgate or fail to promulgate a rule?

Front 9

Agency Action: Rule Making - What constitutes a rule

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Any agency order, directive or regulation of general applicability that
a. Subjects a person to a penalty
b. Effects procedures in agency hearings
c. Relates to public benefits or privileges
d. Relates to issuance or suspension of licenses
e. Relates to any mandatory standards for any product or material before dist. Or sale

Front 10

Agency Action: Rule Making - Actions excluded from rulemaking procedure

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a. Statements of internal agency policies
b. Interpretive and policy statements
c. Traffic restrictions
d. Rules of state inst. of higher ed.

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Agency Action: Rulemaking - Procedure requirements

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Agency must substantially comply or rule is void (except emergency exception)
i. pre-notice inquiry – notice that agency is considering adopting a rule, published in State Register more than 30 days before a proposed rule published
a. must contain
i. statutory authority,
ii. reasons needed,
iii. goals,
iv. consider alternative procedures
ii. notice of proposed rule making (20 days) – notice of content of proposed rule published in state register 20 days before rulemaking hearing
a. must contain
i. statutory authority
ii. summary
iii. explanation
iv. time, place, manner for public comment
b. Emergency Rules exception (less than or equal to 120 days)- one necessary to preserve public health, safety and welfare And following requirements would be contrary to pub interest.
iii. public participation opportunity required – comment orally or in writing, comments fully considered by agency
iv. Concise explanatory statement and rule making file
a. Before Agency finally adopts the rule, it must write up
i. Reasons for adopted rule
ii. Any changes it made to the rule
iii. A summary of comments, and
iv. Agency response to comments
b. Judicial review is based on rule making file
v. Publish Final Rule
a. Must have text of final rule with description of reasons for adopting, differences between proposed and final rule, summary of comments
b. Must be located in state register
c. At least 30 days before the rule goves into effect, unless emergency
vi. Significant Legislative rules – ones that if violated by a client, subject her to penalty or sanction, or involve the granting or revocation of a license, or create a new policy or program.
a. For these rules, agency must also justify need for rule and do a cost benefit analysis
vii. Song to remember for rule making requirements – Surfer girl
a. If you want to make a rule
b. There are some things you must do
c. Give notice, take comment
d. That’s what you have to do
e. (unless its an emergency or just an internal policy)

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Agency Action: Rulemaking - defenses

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a. If agency substantially complied with rule making procedures
b. If there as an emergency
c. If the challenge to the rule is beyond the 2 year SoL

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Agency Action: Adjudication - initial question

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A. Is the agency making an individualized determination requiring an adjudicatory proceeding

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Agency Action: Adjudication - Right to an admin hearing

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a. For local agencies – Const. applies – can bring if denied life, liberty or prop interest
b. For APA agencies – Have a right to bring if aggrieved by an agency action

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Agency Action: Adjudication - For Local Agencies, was it a violation of minimum due process

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1. Reasonable notice?
2. Opportunity to be heard? Use balancing test – Court weighs importance of individual interest, risk of erroneous deprivation and extent to which additional safeguards would reduce risk vs. burden on the gov in providing additional safeguards
3. Unbiased tribunal?

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Agency Action: Adjudication - for state agencies, was it a Violation of statutory due process

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1. Notice of action
2. 20 days to request hearing
3. 7 days notice of hearing to all affected persons
4. Opportunity to be heard
a. Present evidence
b. Testimony under oath
c. Right to cross-examine Ws
d. Right to impartial presiding officer/decision-maker
e. No ex parte communications
f. Relaxed rules of evidence – hearsay admitted. Test is “what a reasonably prudent person would rely upon in the conduct of their affairs.”
5. Written order with findings of fact/ conclusions of law based on record
6. Emergency exception applies to notice/hearing req
7. Appearance of fairness doctrine – if a reasonably prudent disinterested observer would conclude that the parties did not obtain a fair, impartial or neutral hearing

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Agency Action: Investigation (Constitution governs not APA) - Records

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5th amendment violation? Bars agencies from requiring business to keep records when
a. No stats requires the records
b. No public aspects to info demanded
c. Agency is only requiring this of a selective group inherently suspect of crime
d. EXCEPTION – no 5th am. bar when agencies require a gov. regulated business to keep records because they are quasi-public, not private records

Front 18

Agency Action: Investigation (Constitution governs not APA) - Searches and inspections

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– 4th amendment violation? E.g. compliance with building, fire, zoning codes
a. 4th am. requires a warrant prior to search by an agency
b. Exceptions to warrant requirement
i. Heavily regulated business – like gun shop or massage parlor
ii. Search is in a public area
iii. Non-intrusive inspection

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Agency Action: Investigation (Constitution governs not APA) - Subpoenas

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statutory authority or 4th amendment violation? Agency must have statutory authority to subpoena a witness and documents. – See APA or particular agency statute. When Agency subpoena is not specific enough, it violates 4th am

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Two issues: Available Judicial Review and Who does not have right to judicial review

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A. Who has Standing to appeal?
1. State agency: Const and APA standard – any person adversely affected or aggrieved
2. Local agency: constitutional standard – injury in fact, causation, redressibility
B. Statute of Limitations
1. rulemaking: 2 years
2. adjudication: 30 days
C. Finality – must be appeal from final order or arises as an interlocutory order in court
D. Exhaustion of administrative remedies (unless futile) – must do.
E. Ripeness – must be ripe. Are the issues fit for review irreparable harm
a. APA allows pre-enforcement review of rules
b. Declaratory judgment act

No right of judicial review where
1) person appealing lacks standing
2) has missed the SOL for filing in court
3) does not have a final agency decision
4) has not exhausted administrative remedies
5) case is not ripe for review

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Scope of Judicial Review for Rulemaking

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For the scope of review, look at the agency action being challenged
Rulemaking
1. seek declaratory judgment – Thurston County Superior Court
2.rule void if error of law: de novo review
3, rule void if not a product of a rational decision maker: arbitrary and capricious standard

Adjudication
1) Court can set aside, enjoin, remain, order agency action
2) Review for
a. any error of law - de novo
b. findings of facts not supported by substantial evidence
c. order is arbitrary and capricious

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Scope of judicial review for adjudication

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1. Court can set aside, enjoin, remand, order agency action
2. Review of errors of law: de novo review
3. Review findings of fact: not supported by substantial evidence
4. Order is arbitrary and capricious