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22 Cards in this Set
- Front
- Back
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Applicability of WA's APA
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APA applies to: almost all WA state agencies, boards of state universities re:personnel, and local agencies but only if the local agency is performing a state function or if it is applying state law
Does not apply to: Attorney General’s office, Department of Corrections, legislature/judicial/bar, local agencies while the local agency is performing strictly local functions Local functions governed only by local law, common law and constitutional law |
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DEFINE
enabling statute |
Legislature must pass statute that creates an agency to administer program or policy
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DEFINE
rule (PHBLS) (5 areas) |
PHBLS
Any agency order, directive, regulation of general applicability that... Subjects a person to a penalty Effects procedures in agency hearing Relates to public benefits/privileges conferred by law Relates to issuance or suspension of commercial/professional license Relates to mandatory standards for product/material before distribution or sale |
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Pre-notice notice/comment rule
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Agency must give notice agency is considering adopting a rule, published in State Register > 30 days before Notice of Proposed rule; include rule’s authority, reasons, goals, alternatives
Exceptions: emergency, statutorily required, and procedural rules |
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Notice of Proposed Rule
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Agency must give notice of content of proposed rule, published in State Register 20 days before hearing; include authority, summary, explanation, time, place, manner for public comment
Exception: emergency (adoption, amendment, repeal of rule which is necessary to preserve public health, safety, welfare, and notice requirements contrary to public interest) - only lasts for 120 days |
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Emergency notice rule
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Adoption, amendment, repeal of rule which is necessary to preserve public health, safety, welfare, and notice requirements contrary to public interest - only lasts for 120 days
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Explanatory Statement requirement
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Agency must issue 1) reasons for adopted rule, 2) any changes made to the rule, 3) summary of comments, 4) agency response to comments before it adopts the rule
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Final Rule publishing requirement
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Agency must publish text of rule and description (reasons for adopting, differences between proposed and final rule, summary of comments) in State Register > 30 days before rule is effective
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Significant legislative rules
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Rules that adopt substantive provisions (not procedural/interpretive), if violated, subject penalty or sanction, or involve grant/revocation of license, or create new policy or program
Agency must also justify the need for these rules and do cost-benefit analysis before adoption |
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Actions EXCLUDED from rulemaking
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Statements of internal agency policy, interpretive and policy statements, traffic restrictions, rules of state institutions of higher education
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Remedy if rulemaking doesn't follow rules
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If rulemaking notice and comment not followed, APA voids the action taken
Statute of limitations: 2 years to challenge the rule |
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Agency defenses for rulemaking
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Substantial compliance w/rulemaking procedure, emergency, or statute of limitations
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Right to hearing rules for local/APA agencies
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For local agencies, right to hearing only if agency action has denied LIFE, LIBERTY, PROPERTY interests
For APA agencies, right to hearing if person is aggrieved by an agency action |
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Local agency due process rule
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Local agency: constitutional due process is all that’s required; agency must meet minimum 5th and 14th amendment due process requirements of notice, opportunity to be heard, impartial decision maker
Court will weigh importance of individual interest/right being denied by agency, the risk of erroneous deprivation and extent to which additional process safeguards would reduce that risk, against the burden on government of providing such additional safeguards, in deciding if was process given |
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Pre-deprivation hearing requirement
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More critical benefit being taken away by agency is for survival, the more likely the court will require a pre-termination hearing
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What rights are required to satisfy due process under APA?
(8) |
APA agency due process: notice, right to present evidence, testimony under oath, right to cross-examine, right to an impartial decision maker, no ex parte communication, relaxed rules of evidence (hearsay if reasonably prudent person rely on in conduct of affairs), and a written order
Fairness: if appearance of fairness is violated, agency decision is void |
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Timelines for hearing requests/notice
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Right to request hearing in 20 days of notice
Written notice of hearing 7 days before hearing |
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Requirements for judicial review
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Standing
Finality Exhaustion of remedies Ripeness |
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Statute of limitations
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2 years for rulemaking; 30 days for adjudication
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Standing requirement for judicial review (state agency vs. local agency)
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“Any person adversely affected or aggrieved” has standing for state agency action; for local agency action, injury in fact plus causation plus repressibility required (constitutional standard)
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Scope of rulemaking judicial review
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Declaratory judgment or rule voidance (de novo standard for error of law; arbitrary and capricious standard if rule is not product of rational decision maker)
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Scope of adjudication judicial review
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Court can set aside, enjoin, remand, order agency action (de novo review for error of law; findings of fact not supported by “substantial evidence” in light of entire record; order review is arbitrary and capricious standard)
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