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5 Cards in this Set
- Front
- Back
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What case gave us the rule that In formal adjudicatory hearings, you cannot have exparte communication between the adjudicatory and adversarial functions withinthe agency? |
Quintanar |
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What did the Quintanar case give us? |
1.) Communications are permittedregarding uncontroversial procedural matters.·
2.) An agency decision maker mayreceive advice from nonadversarial agency personnel: an otherwiseprohibited ex parte communication will be allowed if it “ is for the purpose ofassistance and advice to the presiding officer from a person who has not servedas investigator, prosecutor, or advocate in the proceeding or its pre-adjudicativestage. An assistant or advisor may evaluate the evidence in the record, butshall not furnish, augment, diminish, or modify the evidence in the record. Clear rule from APA: An agency prosecutor cannot secretly communicate with the agency decisionmaker or the decision maker’s advisor about the substance of the cae prior toissuance of the final decision. |
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What is the The leading case on the relationship between due process and separation of functions? |
Withrow: In Withrow, heads of agencywere talking to each other. This means you might have agency head that sits onadversarial side then moves to adjudicatory side. – this CAN happen underfederal APA.§ Main check on this: do a Mathewstest and challenge the way they are actually going about the proceeding—stilldo a due process evaluation/challenge. |
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Separation of Functions under the APA |
The federal APA requires internal separation of functions. §554(d)(2): “An employee or agent engaged in the performance of investigative orprosecuting functions…” o APA § 554(d) prohibits staff members in serving as adversaries (investigators and prosecutors) from serving asadjudicators or from advising adjudicators off the record.o As Quintar confirmed, all otherstaff members can furnish off-record advice to adjudicators.
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Separation of Functions under the MSAPAs |
o 1981 MSAPA: allows decision makers toreceive ex parte assistance from non-adversarial staff members (§ 4-213(b))§ However § 13 of 1961 MSAPA prohibits ex parte communications to agencydecision makers from both outsiders and staff members. o
1961 MSAPA: Under § 13, decision makers can’t communicate directly orindirectly in connection with any issue of fact, with any person or party, norin connection with any issue of law, with any party or his representative,except upon notice and opportunity for all parties to participate.§ 2 exceptions:· 1.) an agency member maycommunicate with other members of the agency; and · 2.) may have the aid and adviceof one or more “personal assistants.” §§ 1(5) and (6). |
