Admin law and Business Relations Flashcards
Under the separation of powers doctrine, is the legislature permitted to delegate its lawmaking power to an administrative agency?
No but they may endow administrative agencies with the power to fill the gaps in the legislative product by prescribing rules and regulations consistent with the enabling legislation.
What are SAPA’s procedures?
prior to adoption of the rule, an agency must submit notice of the proposed rule to the Secretary of State for publication in the State Registrar and afford the public an opportunity to submit written comments to the rule.
What must the notice of the rule include?
1) a statement of the statutory authority
2) a complete text of the proposed rule and the website address where the full text is posted
3) a regulatory impact statement and flexibility analysis and
4) date, time, and place of any public hearings
When is a rule effective?
except for emergency rules and certain other specified rules, a rule is not effective until it is filed with the Secretary of State and notice of adoption is published in the state registrar.
what must the notice of adoption contain?
information similar to the proposed rule and also must include effective date of the rule and an assessment of the public comments received.
what is Article 3 of SAPA?
quasi-judicial making (adjudication)
What is section 301 of Article 3 of SAPA?
The Due Process requirements
What must a party to an administrative proceeding be afforded?
due process protections of the 14th Amendment and the New York State Constitution
What is considered Due process for purposes of Article 3?
1) a short and plain statement of the matters asserted,
2) an opportunity for a hearing within a reasonable time,
3) reasonable notice of such hearing and
4) an opportunity to present written arguments on issues of law and evidence on issues of fact.
What is the minimum due process for a party to an administrative proceeding?
1) impartial decision maker
2) with notice and opportunity to be heard
3) based upon a record
When is an ex-parte communication ok?
when there is a question of fact and there cannot be communication directly or indirectly with any party and notice and opportunity to be heard must given
what must be done to disqualify a hearing officer?
a motion must be made on the record
How are the rules of discovery governed?
they are not governed by the CPLR and each agency may adopt rules for discovery and depositions to the extent and in the manner appropriate to its proceedings, and the parties to the proceeding are subject to these rules
What is an exception to the discovery rules?
when a license is being revoked or permit previously granted and disclosure is required (basis for revocation) and a fair hearing must be awarded.
Do agencies need to follow the Rules of Evidence according to SAPA?
No unless otherwise provided by statute but privilege still applies
Who has the burden of proof in an administrative proceeding?
the party that initiated the proceeding
What is the Substantial evidence test under SAPA Article 3, section 306?
factual evidence is supplied on which a reasonable person is custom to rely on a series of affairs
is reasonable and plausible required?
yes but not necessarily most probable
does Res judicator and collateral estoppel apply in administrative proceedings?
yes to previous decisions that had a full and fair opportunity to litigate
what allows for investigative powers?
1) authority by Enabling statute
2) admin searches/inspection and
3) the 4th Amendment
What are the warrant requirement for an administrative agency?
a warrant is required unless the agency is a closely regulated businesses (licensed by agency and report to agency, not enough)
are administrative proceedings subject to the exclusionary rule?
not per se excluded, a balancing test is done
Does the right to assisted counsel applicable to agencies not subject to the law? **
no
What are agencies subpoena power?
absent any statutory grant of subpoena power, agencies and attorneys of record for any party to the proceeding are granted general subpoena power.
how must a request to withdraw or modify a subpoena be made?
must first be made by the person who issued it, and motions to quash or enforce admin subpoenas are not part of the hearing process and must be made in Supreme Court.
who has standing in an administrative proceeding?
1) injury in fact and
2) zone of interest is to be protected by a statute
What must a party attempt to obtain before proceeding to the courts?
whatever administrative relief might be available
What are the major exceptions to exhausting administrative remedies?
1) agency actions that are challenged as either unconstitutional or wholly beyond the agency’s grant of power or
2) when resorting to an administrative remedy would be futile or its pursuit would cause irreparable injury.
when a constitutional claim hinges on factual issues, what must done?
the necessary record must be established at the administrative level
if an underlying statute provides an exclusive administrative remedy, what does not apply?
the futility and irreparable injury exception
What are the ripeness requirements?
if a party to an administrative adjudication pursued all avenues of relief open within the agency without a satisfactory result
is a determination that is interlocutory in nature reviewable?
it may be if there are extraordinary circumstances
What are the statute of limitations against a body or officer in an administrative proceeding?
must be commenced within 4 months after the determination to review becomes final and binding upon the petitioner.
What type of proceedings are proceedings under Article 78 of the CPLR?
special proceedings
what are special proceedings subject to?
specific procedural requirements
are declaratory judgments generally subject to Article 78?
No
what is the standard of review for administrative proceedings?
depends on the nature of the issue
What is the standard of review of an agency decision on the issue of law?
1) whether the decision is supported by a rational basis
2) was affected by an error of law or was arbitrary and capricious or
3) an abuse of discretion.
What is the standard of review for issues of fact in an agency proceeding?
the evidence must be on the record as a whole and supported by substantial evidence
