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96 Cards in this Set
- Front
- Back
What creates an administrative agency?
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Enabling Statutes
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What (3) three activities / powers, or roles can agencies engage in?
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1. Rulemaking
2. Adjudications 3. Investigations |
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What is the key question in Admin. Law?
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Can the action pass judicial review?
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ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - What are the (3) three requirements of a valid rule?
[AS.SA.PP] |
1. Ascertainable Standards
2. Statutorily Authorized 3. Promulgated Properly |
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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?
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NO. This rule exceeds agency authority.
Ultra Viries |
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ADMINISTRATIVE RULEMAKING: THE QUASI-LEGISLATIVE ROLE - What are ascertainable standards?
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Standards that the regulated parties can "rely" on to determine the rule's effect.
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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?
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NO. This rule lacks ascertainable standards
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12 STEP RULEMAKING PROCESS - What is the earliest date a rule can be made?
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Before the statute's effective date.
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12 STEP RULEMAKING PROCESS - When is the latest date a rule can be made?
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60 days after the statute's effective date.
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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?
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Publish notice of intent.
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12 STEP RULEMAKING PROCESS - When and where must an agency publish its notice of intent?
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In the Indiana Register - at least (30) thirty days prior to the rule preliminary adoption.
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12 STEP RULEMAKING PROCESS - If the fiscal impact of the proposed rule will be greater than _________, it must notify the _____________________?
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1. $500,000
2. Rule Oversight Committee |
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12 STEP RULEMAKING PROCESS - Preliminary Adoption of a rule is completed by what (2) two things?
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1. Publishing the preliminary rule in the register, and
2. Giving the public "notice" of the rule in a general newspaper. |
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12 STEP RULEMAKING PROCESS - what must the public have the right to do at the hearing?
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Make oral or written comments.
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12 STEP RULEMAKING PROCESS - Does the Agency have to consider those comments, and if yes, what are they required to do?
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Yes. Then they must respond to the comments in writing.
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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. |
1. change
2. substantially differ 3. logical outgrowth - then the final version is adopted by the agency's final authority. |
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12 STEP RULEMAKING PROCESS - After final rule adoption by the agency, who do they submit the rule to?
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- the Attorney General
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12 STEP RULEMAKING PROCESS - Can the Attorney General disapprove of the rule?
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Only for Cause.
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12 STEP RULEMAKING PROCESS - What three reasons are sufficient for the AG to disapprove of a rule "for cause"?
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1. did not comply with promulgation process.
2. substantially differs from preliminary rule. 3. the rule violates the law. |
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12 STEP RULEMAKING PROCESS - If the AG believes the rule is a taking, what (2) two people must he inform?
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1. The Governor
2. Head of the Agency |
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12 STEP RULEMAKING PROCESS - If the AG does not approve the rule within _________ days, the rule is then deemed _________?
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1. 45 days,
2. approved |
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12 STEP RULEMAKING PROCESS - Can the Governor disapprove the rule without cause?
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Yes.
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12 STEP RULEMAKING PROCESS - How long does the Governor have to review a rule, before his inaction is deemed an approval?
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15 days. He can request an extra 15 days.
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12 STEP RULEMAKING PROCESS - Who receives the rule after the Governor has approved it?
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The Secretary of State.
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12 STEP RULEMAKING PROCESS - What is the Secretary of State looking for in the rule, and how long does he have to do it?
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1. Appropriate form.
2. 3 days |
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12 STEP RULEMAKING PROCESS - May an agency recall a rule before filing it with the Secretary of State?
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Yes.
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12 STEP RULEMAKING PROCESS - How much time does the agency have to complete the entire rulemaking process?
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One year.
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What is Step ( 1 ) of 12 in the Rulemaking Process?
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When Rules are to be made.
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What is Step ( 2 ) of 12 in the Rulemaking Process?
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Publish Notice of Intent.
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What is Step ( 3 ) of 12 in the Rulemaking Process?
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$500,000 Notice to R.O.C.
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What is Step ( 4 ) of 12 in the Rulemaking Process?
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Preliminary Rule Adoption: Publication & Notice
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What is Step ( 5 ) of 12 in the Rulemaking Process?
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Public Hearing and the Opportunity to Comment
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What is Step ( 6 ) of 12 in the Rulemaking Process?
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Agency Consideration and Response to Comments.
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What is Step ( 7 ) of 12 in the Rulemaking Process?
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Final Rule Adoption
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What is Step ( 8 ) of 12 in the Rulemaking Process?
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Attorney General Approval
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What is Step ( 9 ) of 12 in the Rulemaking Process?
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Governor's Approval
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What is Step ( 10 ) of 12 in the Rulemaking Process?
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Filed with Secretary of State
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What is Step ( 11 ) of 12 in the Rulemaking Process?
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Option to Recall
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What is Step ( 12 ) of 12 in the Rulemaking Process?
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One-Year Deadline
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OPENNESS - What are the (2) two public information laws rulemaking must comply with?
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1. Open Door Law
2. Access to Public Records Act |
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JUDICIAL REVIEW - What standard of review will a court use for agency rulemaking?
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De Novo Review
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JUDICIAL REVIEW - How is administrative adjudication reviewed?
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As an Appeal.
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ADMINISTRATIVE ADJUDICATIONS - What function is the agency acting under when it is involved in adjudications?
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The Quasi-Judicial Function
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ADMINISTRATIVE ADJUDICATIONS - What does AOPA stand for?
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Administrative Orders and Procedures Act
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ADMINISTRATIVE ADJUDICATIONS - What does AOPA regulate?
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Administrative Adjudication
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ADMINISTRATIVE ADJUDICATIONS - What branch of government does AOPA exclusively concern?
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The "State" Executive Branch
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ADMINISTRATIVE ADJUDICATIONS - Does AOPA concern local agencies?
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NO. AOPA only applies to statewide executive agencies.
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ADMINISTRATIVE ADJUDICATIONS - What is the main function of AOPA?
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To set minimal procedural rights for agency adjudication.
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"ALJs" - What is the basic grounds for an ALJ's qualification?
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Impartiality
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"ALJs" - Does an ALJ need a bar license?
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NO.
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"ALJs" - An ALJ is not allowed to engage in ex parte communications with?
Remember: (P.I.P.P) |
P: Part of the Proceedings
I: Interested parties P: Presided earlier P: Prohibited from contact |
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"ALJs" - What (2) things make an "ex parte" communication prohibited.
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1. no opportunity for all to participate
2. about an issue relevant to the proceedings |
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ADMINISTRATIVE HEARING PROCEDURES - Do the normal rules of evidence apply?
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No.
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ADMINISTRATIVE HEARING PROCEDURES - Can hearsay be admitted?
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Yes, but the decision cannot be based solely on hearsay.
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ADMINISTRATIVE HEARING PROCEDURES - If there is hearsay, and one party objects, what should the judge do?
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Sustain the objection, but admit the the testimony.
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JUDICIAL REVIEW - What are "reviewable" decisions?
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Final Agency Orders
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JUDICIAL REVIEW - What evidence is allowed to be reviewed?
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The agency record
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JUDICIAL REVIEW - Can additional evidence be admitted outside the final agency record? If so, what?
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Yes.
It must be: 1) Necessary, 2) Not previously discoverable, and 3) Relevant. |
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JUDICIAL REVIEW - In order to seek judicial review, a party must demonstrate what (3) things?
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1. Standing
2. Exhaustion 3. Timeliness |
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JUDICIAL REVIEW - What (4) four things qualify a party to have Standing?
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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. |
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JUDICIAL REVIEW - What is Exhaustion?
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when all administrative remedies have been exhausted
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JUDICIAL REVIEW - What are the (3) three exceptions to exhaustion?
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1. Refusal
(of agency to dispose of claim), 2. Futility (of exhausting administrative remedies), or 3. Purely Constitutional issues. |
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JUDICIAL REVIEW - In regards to Timeliness, how long does a party have to petition for review after agency action?
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30 days
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JUDICIAL REVIEW - To preserve the right to judicial review, what must a person do to maintain timeliness?
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1) Object in a timely manner to the final order, or
2) file a petition for review. |
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JUDICIAL REVIEW - What must the party prove the administrative action was to obtain judicial review?
[A. C.AD. CONed the JURI. PRO. S.E.] |
1. Arbitrary and Capricious
2. Abuse of Discretion 3. Against Constitution 4. No Jurisdiction 5. Procedure was Ignored 6. Unsupported by Evidence |
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PROCEDURAL DUE PROCESS - What is the first thing required for a procedural due process claim?
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State Action
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PROCEDURAL DUE PROCESS - What rights does the PDP clause guarantee?
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The right to notice and a hearing.
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PROCEDURAL DUE PROCESS - Is the PDP clause limited to adjudication?
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Yes.
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PROCEDURAL DUE PROCESS - What are the (2) two basic PDP questions?
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1. Protected interest at stake?, and,
2. What process is due? |
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PROCEDURAL DUE PROCESS - Does a PDP claim challenge the 1)adequacy of the process, 2) the substance of the decision, or 3) both?
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1. Limited to procedural claims.
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PROCEDURAL DUE PROCESS - What would be considered a protected interest?
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A deprivation of a Life, Liberty, or Property Interest?
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PROCEDURAL DUE PROCESS - (3) Three big examples of protected "LIBERTY" interests.
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1. Right to Travel
2. Marriage 3. Having Children |
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PROCEDURAL DUE PROCESS - To raise a "deprivation of property" claim, what must you first have?
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A legitimate claim of entitlement.
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PROCEDURAL DUE PROCESS - "What process is due?" (3) Three-Part Balancing Test?
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1. Individual Harm
2. vs. Government interest in current procedure, then 3. the value of additional process. |
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PUBLIC ACCESS TO INFORMATION - What is the purpose of the Open Door Law?
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To ensure access to agency meetings
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PUBLIC ACCESS TO INFORMATION - Does the ODL only apply to State or Local agencies?
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Both
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PUBLIC ACCESS TO INFORMATION - Does the ODL apply to all branches of government?
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NO. There is no "open door" access to Judicial meetings.
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PUBLIC ACCESS TO INFORMATION - Under the ODL, what qualifies as a meeting?
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A "majority of the body" - meeting for the purpose of taking "State Action".
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PUBLIC ACCESS TO INFORMATION - What are the (5) exceptions to the ODL's open meeting requirements?
[B.O.S.C.E.] |
1. Betterment Meetings
2. On-site Inspections 3. Social Gatherings 4. Caucuses 5. Executive Sessions |
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PUBLIC ACCESS TO INFORMATION - What are the (4) four criteria for establishing an Executive Session?
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1. Final Action must still be in public,
2. Not intended to circumvent public, 3. 48 hours advanced notice, 4. For single statutory reasons. |
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What (3) items must agencies maintain at all times in regards to meetings, hearings, etc...?
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1. agendas
2. memorandums, and 3. minutes |
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NOTICE REQUIREMENTS - How long before the meeting must notice be given?
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48 hours
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NOTICE REQUIREMENTS - What must a public notice contain?
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Date, Place, and Time
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NOTICE REQUIREMENTS - If an agency wants to give public notice of a meeting, where must they post that notice?
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At the agency's principal office, 48 hours in advance, giving Time, Place, and Date.
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NOTICE REQUIREMENTS - Does the media have a right to notice mailed to them?
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Yes. If they requested it that year.
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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. |
1. Agendas
2. Memoranda 3. Minutes |
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(3) remedies against agency action for an agency violation of the ODL?
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1. Declaratory judgment
2. Injunction, or 3. Agency Order declared void. |
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Does a party have to have standing to challenge agency action under ODL?
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NO.
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ACCESS to PUBLIC RECORDS ACT - What is the purpose of this act?
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To give the public full and complete access to government information.
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ACCESS to PUBLIC RECORDS ACT - Which branches of government does this act apply to?
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All of them.
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ACCESS to PUBLIC RECORDS ACT - What is the General Rule of this act?
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There is a right to inspect and copy public records.
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ACCESS to PUBLIC RECORDS ACT - What is a public record?
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Anything the government has: 1) created, 2) received, 3) retained, 4) maintained, or 5) filed.
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ACCESS to PUBLIC RECORDS ACT - 1. How many exceptions are there to the APRA?
2. What are some common examples? |
1. 12
2. records declared confidential by law; trade secrets; grade transcripts; bar exam or license scores; autopsy photographs. |
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ACCESS to PUBLIC RECORDS ACT - 1. How many "discretionary" exceptions are there to the APRA? 2. What are some common examples?
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1. 21
2. investigative records of law enforcement agencies; diaries of officials; and test questions used in licensing examinations. |
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ACCESS to PUBLIC RECORDS ACT - How does a citizen request a public record?
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On the record, with particularity, or by writing the request by agency request.
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ACCESS to PUBLIC RECORDS ACT - What is the remedy for failing to comply with act?
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To Compel Inspection.
Note: Attorney's fees are discretionary. (the P must substantially prevail, and the D must show the action was frivolous). |