Intro to Admin Law
A. Three Questions
1. What government action gives rise to the issues in the case?
a. Examples of administrative agency actions
i. Local: Zoning board, tax assessors, planning commissions
ii. Federal: SEC, IRS, Dept. Labor, EPA
2. How does the law characterize those actions?
a. Rules, orders, variances, rulings, ordinances, planning documents, expulsion, etc.
b. Rules: general, prospective statements of law that apply to classes of persons / entities
c. Orders: more specific, particularized statements of law that usually apply to a single individual or entity and involve a determination of facts that have already occurred.
i. Usually there is an adjudicatory process.
3. What are the legal consequences of those characterizations?
a. There is a spectrum between rules and orders—there are different procedures depending.
B. Rules or orders?
1. Londoner v. City & County of Denver (1908) p. 4 Tax assessM for paving road
a. If there are individual rights, then there is a due process right to an individual hearing. – This is a tax imposed on particular persons based on the value and location of their home, therefore it is an ORDER, rather than a rule, and due process is implicated.
b. Facts:
i. Tax assessed to people whose property abutted a road that was to be paved.
ii. Denver charter said that (1) owners must petition the board of public works for the improvement, (2) city council then passes an ordinance, and (3) the cost is assessed to the land owners after notice and opportunity for a hearing.
iii. Landowners did not petition the board before it sent a resolution to city council.
c. City council had the power to decide if a proper petition had been filed.
i. Council said there was a proper petition. CO S.Ct. said that even there was no petition, city council’s decision was conclusive.
ii. Does this violate due process?
1) S.Ct. says no. There need to be efficient procedures, and it is okay as long as a hearing for the assessment is possible.
d. Was notice and opportunity for a hearing given? If not, no due process.
i. T.Ct. said no, Co. S.Ct. said no, US S.Ct. says no.
ii. A letter was sent to the landowners which said that they could file a complaint within 30 days. The plaintiff did so, but city council did not have a hearing. They decided in a special session to adopt a resolution confirming and approving the assessments.
iii. Was the ability to file an objection due process enough?
1) No, there is a right to some kind of brief, informal, oral hearing for tax assessments.
iv. There was no opportunity for a hearing, therefore no due process & assessment is void.
2. Bi-Metallic Inv. Co. v. State Bd. Equalization (1915) Holmes p. 8 40% incr. in prop val.
a. If everyone is affected equally and there is no individual assessment, then due process doesn’t require a hearing.
b. Facts: State board of equalization passed an order increasing the valuation of all taxable property in the city of Denver 40%.
i. There was no opportunity for a hearing, but there was an opportunity to challenge the assessment of the property value.
c. Holmes says that there is no right to hearing in this case.
i. More people:
1) “Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption.”
2) This is a dangerous distinction to rest things on, and subsequent decisions shied away from this theory.
ii. Exceptionally affected people on individual grounds:
1) “There were a relatively small number of persons were concerned, who were exceptionally affected, in each case upon individual grounds.”
2) Here, everyone had a 40% increase. If there are people who are exceptionally affected on individual grounds, then there are due process rights (to an informal, oral hearing.)
3. Londoner or Bi-Metallic?
a. If an individual is exceptionally affected on an individual basis, then Londoner applies and there is a right to a hearing.
b. If it is a general rule, then there is no right under Bi-Metallic.
c. Problem 1-1 Liquor licenses in Illinois. Voters trying to shut down a particular bar.
i. Voters can vote to revoke the liquor license at a particular address.
ii. Londoner would apply because it’s individual rights.
iii. If they decided to make the whole county dry, then Bi-Metallic would apply because it’s a general rule to everyone.
d. Problem 1-2 Plastic containers banned—only one takeout restaurant in town.
i. Law banning the use of plastic bags and take-out containers in all restaurants in town. There is only one restaurant that serves takeout. Law purports to cover everyone, but only actually covers one establishment.
ii. So the question is whether or not this is under Londoner or Bi-Metallic.
iii. “Class of one” with respect to equal protection (p. 15-16)
1) If someone is singled out and intentionally treated differently from others similarly situated, then there is potentially an equal protection claim.
iv. As atty for the city, you would say that this is a general rule:
1) More restaurants might open up, this is a rule for the city and right now it happens to apply to one only.
2) The restaurant doesn’t have to shut down, they just can’t have take-out any more.
3) That side would probably win and Bi-Metallic would apply.
v. There would have to be more evidence that the city was singling out this one particular restaurant for Londoner to apply.
e. Bowles v. Willingham (1944) p. 12 Rent caps—hearing after the fact is enough.
i. Mank: this case is in the middle between Londoner and Bi-Metallic because the LL does have a hearing, but its after the fact and the remedy is lousy.
ii. Facts:
1) WWII period—factories making supplies for the defense industry. Rents increase in those towns immediately. People are unhappy.
2) Emergency Price Control Act creates a roll back to April 1, 1941. Whatever the rent was on that date is now the rent for today.
3) The difficulty is for apartments that were vacant at that time. Those should be rented at the prevailing rate in that particular area on April 1, 1941. The Administrator/Rent Director can set the maximum amount.
iii. Hearing or not?
1) There is review after the fact—LL can file a protest and there is an Emergency Court of Appeals. Is that enough?
2) The court treats this as a Bi-Metallic case.
3) Congress has no requirement to give notice and a hearing before it acts, so the Emergency Price Control board doesn’t have to either.
4) After-ruling review is enough due process.
iv. Many scholars today would say that this case is wrongly decided and there should be individual assessments under Londoner. Deciding what an apartment is worth is an individual determination.
f. Problem 1-3 Bad beef defamation
i. Department of Agriculture: Do you have a due process right to review before press releases that are sent out that say “Verns Moses
1) written notice 7 days before the termination,
2) an opportunity to respond in writing, and
3) a post-termination hearing.
c. The question is whether this is enough rights.
i. For welfare recipients, NO. People on welfare depend on this source of money; They might not be able to read and write. The system is geared toward educated people who can read a letter & respond in writing in 7 days. (Welfare benefits treated as an entitlement here.)
ii. But for a college professor, this might be enough due process.
d. TEST: balance private & gov’t interest.
i. extent of DP reQ’d is influenced by the extent to which one may be condemned to suffer GREVIOUS LOSS, and depends on whether the recipient’s interest in avoiding that loss outweighs the gov’t interest in summary adjudication.
e. Oral Hearing ReQ’d:
i. Evidence can be presented ; Right to confront and cross-examine ; Gov’t doesn’t have to provide an atty, but you have a right to have one ; Decision must be made solely based on legal rules and evidence at the hearing ; Judge must be impartial—it can’t be the person who recommended termination, but can be a welfare official ; Judge has to state the reasons in their decision and say what evidence they relied on.
ii. Rights of welfare recipients
1) Timely & adequate notice ; Ability to confront adverse witnesses (may be stronger right for welfare recipients because things like living with a man or having an off-the-book job come from testimony of the neighbor) ; Cross examination of adverse witnesses
2) Oral presentation of arguments, Oral presentation of evidence
3) Disclosure of opposing evidence ; Right to retain an atty
4) Record of the hearing (can be abbreviated) ; Statement of reasons for the termination and the evidence ; Impartial decision-maker (but no right to a jury trial).
f. Black dissent: This puts a great burden on the government. If it becomes too burdensome, gov’t might not extend welfare benefits in a close case.
C. Property & Liberty Interests
1. Professors: Tenure system Roth, Sinderman
a. Bd. of Regents, State Colleges v. Roth (1972) p. 88 non-tenured prof fired. No lib/prop int.
i. Facts: Professor had a one year contract and it was not renewed. He was only one of four that was terminated at the end of his contract.
1) Prof. says he was fired b/c he opposed the Vietnam war. That issue decided separately.
ii. Interest protected by Due Process
1) Property: No – If he was told that he wasn’t being renewed because he’s a thief, then he might be able to get a hearing in order to protect his reputation. State law created no right to the job or claim of entitlement
2) Liberty: Not here. The state didn’t make any charge against him that might seriously damage his standing and associations in the community.
