Chapter 1: Introduction
1.) Class intro lecture
a. Agency = body other than the legislature or courts that effects the legal rights or duties of an individual
i. Execute and make law
b. State admin. law is very important and different than federal admin. law
i. Why are state and federal admin law different?
1. Problems differ & feasible and effective procedural solutions differ
a. State agencies have small staff, constituents are smaller in number, state agencies are often run by part-timers at the top, state agencies are often structured to have formal interests represented, SA are not as well financed as fed., SA less technical advice, SA deal with less educated and affluent people, public is often not represented by lawyers when contacting state agencies (different for federal agencies), state agency matters are usually smaller economic value issues.
2. Some state agency heads are elected. Feds are always appointed by pres or head of a dept.
2.) Administrative agencies and administrative law
a. Admin. agencies are units of gov’t, not units of legislature or the courts
b. Most agencies are part of executive branch, by some independent
c. Agencies are:
i. Regulatory: they enforce a mandatory scheme of prohibitions or obligations
ii. Benefactor: they disburse benefits (social security)
d. Agencies are authorized by statute to investigate, prosecute, make law, adjudicate, license, and perform various other functions
3.) Admin. procedure acts (APA)
a. Statute enacted by the legislature which provides a statutory code of procedure that regulates agency processes
i. Purposes of APA = (1) provided adequate procedural protection of private rights, (2) ensure that agencies act in a manner consistent with the political will of the community, (3) ensure some uniformity of procedures among the many agencies, (4) make sure that agencies function effectively, efficiently, and economically (need for legislature to balance private rights and uniformity and need for responsiveness of the public will)
b. Principle sources of admin law are (1) federal & state constitutions & (2) judge made common law
c. APA’s = administrative procedure acts = general and comprehensive (apply to all or most agencies rather than just one or a few & deal with the main problems in admin. law)
i. Comprehensive because they cover 4 main subjects ((1) access to the contents of agency law, (2) deal with rule making procedure (just like a statute if enacted properly), (3) adjudication procedure, (4) cover judicial, executive, and legislative review of agency action)
ii. General because: usually these APA’s cover most if not all state agencies
iii. APA’s set a minimum floor. (they are in addition to the other statutes)
1. Other statutes can require more, but because of these APA’s, other statutes cannot require less. (§559 & §17A.23)
iv. APA Covered agency under these statutes
1. Every authority of the gov’t of the US, other than the congress or the courts
a. USSC says President isn’t an agency too
v. IAPA Covers
1. All administrative offices or units of the state (not the general assembly, the judicial dept., or governor) (local gov’t is not covered)
vi. When can an agency not be subject to the Fed. Or state APAs?
1. §559 = exemptions are valid only if express
2. §17A.12 &17A.23 = to exempt an agency otherwise covered by the IAPA, the exemption must be express, and it must note the IAPA by name.
a. Why so hard? Force the legislature to seriously consider anytime it wishes to reduce the rights of people under the APA’s. Otherwise, we would have later statutes that give persons less rights. Silence should not be enough to take away rights.
4.) Snapshot of the admin. process
a. Techniques available to an agency to carry out its mission
i. Research and publicity
1. Research problems and solutions
2. Publishing research results can aid consumers in making their economic decisions
1. Responsibility of solving the hard issues in implementing a statute is passed to an agency
2. Rules are agency statements of general applicability and future effect that implement, interpret, or prescribe law or policy
1. Will specify the qualifications for obtaining a license, what a licensee may or may not do, and when and how licenses may be revoked or suspended
2. Can decrease competition and increase prices without compensating public benefit if the license is just a “barrier to entry.”
3. Permits = agency must give the ok before the actor can act
iv. Investigation and law enforcement
1. Agencies must ensure that those subject to the statute and rules actually follow them
2. Be prepared to receive complaints from the public & investigate those complaints
3. Agency must have formal investigatory powers (subpoena docs, inspect premises, and obtain routine reports)
4. The agency must function like a police department & prosecuting office
1. Agency determination of particular applicability that affects the legal rights or duties of a specified person based upon his individual circumstances
1. Power the legislature often delegates to an agency because as a practical matter, it cannot set the rates itself. (extremely time-consuming and require constant adjustment as market conditions change.
2. Admin. price fixing is a common technique when a natural monopoly exists (local phone) or when market failures are thought to prevent the market from functioning properly
vii. Judicial review
1. Occurs very frequently, and happens in the regular court system
viii. Legislative and executive review
1. Legislature engages in oversight, investigating agency action and amending agency enabling statues when it wants
a. In some states, the legislature has the power to delay or veto agency rules
2. Legislature can increase or decrease agency budget
3. Executive often appoints the heads of the agency
a. Staff will keep track of the agency’s activities
b. Removal (1) for any reason or (2) only for “good cause” if independent agency
c. Governor sometimes can delay or veto agency rules
d. In some states, the executive has a line-item veto
5.) Costs and benefits of admin. procedure and procedural reform
a. Agencies should act lawfully, be responsive to the wishes of the public, make accurate and sound determination, and treat affected persons fairly
b. Must determine if the benefits of a requirement outweigh the costs
i. Should consider possible alternatives
c. Agencies always have a range of permissible options they can choose in resolving a particular problem by rulemaking or adjudication (discretion)
i. How much should agency discretion be constrained by the legislature, courts, or agency itself?
d. Legal requirements are intended to prevent a bureaucracy that is created to advance the public interest from becoming “captured” by the groups it is intended to regulate
6.) Agency legitimacy and admin. law
a. New Deal & (1970’s) = agencies were expected to solve the nation’s economic and social problems on the basis of their special expertise.
i. Technical experts ensure that agency actions are consistent with the specific wishes of the elected legislature
b. Pluralist or interest representation model (current) = views the activities of unelected agencies as legitimate to the extent agencies engage in a fair political process.
i. Wants all special interests to be represented in the admin. process.
ii. Judicial review assur
the value of allowing a hearing w/ cost of hearing
HEARINGS AND WELFARE TERMINATION: DUE PROCESS AND MASS JUSTICE
Goldberg v. Kelly (U.S. 1970) p.22
1.) P claims she was dropped from gov’t aid for illegal reasons & without notice or a DP hearing. State process did not require a hearing before termination of P’s benefits.
2.) RULE – Procedural DP requires a pre-termination evidentiary hearing before a recipient’s welfare benefits can be terminated because: the aid recipient’s interest in uninterrupted aid payments (means to live) and the state’s interest in caring for its poor outweighs the states interest in preventing an increase in its fiscal and administrative burden (balancing test)
a. Pre-termination hearing amounts to a lot of expense and time
i. Oral hearing, confront & cross adverse witnesses,
3.) Benefit was to important to take away when the gov’t may be wrong because it hasn’t had a pre-termination hearing
4.) If a statute gives you an entitlement, even though that the gov’t didn’t have to give you that interest in the first place, that entitlement is protected by due process.
5.) Right/privilege doctrine = if the gov’t gives you something that it doesn’t have to give you, and then decides to stop giving it to you, that’s a privilege not a right. (you have no property interest in it & they can take it away without procedure) (rejected here)
6.) Is this decision good for the poor?
a. Administrative costs come out of the budget of total money available
b. Decision protects the truly entitled from losing benefits completely, but agency may not make it harder to qualify for benefits in the first place
INTERESTS PROTECTED BY DUE PROCESS: LIBERTY AND PROPERTY
1.) 5th and 14th = to be entitled to procedural due process, a person must be deprived by gov’t of liberty or property
a. What are life, liberty, and/or property interests? (due process only applies to these elements)
2.) Court has shaped procedural DP, often by making the procedures required proportionate to the matter at stake
a. Entitlement doctrine = court excludes certain interests entirely from due process protection
i. No protection at all
b. Minimist doctrine = even when an entitlement exists, the injury to the interests is so deminimus, there is no protection
c. Proportion doctrine = when due process attaches, the procedures required are variable depending upon the strength of the interest at stack
Board of Regents v. Roth (U.S. 1972)
1.) D was hired to teach at a state university for 1 year, and then not asked back. State law gave school clear discretion to make hiring decisions. No review of decision not to renew was provided or required. D claimed a violation of procedural DP
2.) RULE – No DP hearing was required because P hadn’t interfered with D’s liberty interest in seeking other employment and D had no property interest in continued employment with the school because his contract didn’t contain any provisions such as “sufficient cause” that would create such interest.
3.) Liberty right