Administrative Law

Question 1

Power to Make - Delegating Lawmaking Powers to Agencies

Answer 1

Under the separation-of-powers doctrine, the legislature cannot delegate its lawmaking power to an administrative agency. However, the legislature may endow administrative agencies with the power to fill in the gaps in the legislative product by prescribing rules and regulations consistent with the enabling legislation (Nicholas v Kahn, 47 NY2d 24 [1979]).

Question 2

Power to Make - Requirements to Fill in the gaps

Answer 2

There does not need to be a specific and detailed legislative expression authorizing a particular administrative act, as long as the basic policy decision has been articulated by the legislature, the administrative rule or regulation is not inconsistent with the statutory language or its underlying purpose, and the administrative agency is not engaging in broad-based policy determinations (Gen. Elec. Capital Corp. v New York State Div. of Tax Appeals, 2 NY3d 249 [2004]).

Question 3

State Administrative Procedure Act - What has to happen prior to the adoption of a rule?

Answer 3

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 on the proposed rule

Question 4

State Administrative Procedure Act - What must a notice include?

Answer 4

1. A statement of the statutory authority for the rule
2. a complete text of the proposed rule or, if the rule exceeds a certain length, a description of the rule and the website address where the full text is posted
3. a regulatory impact statement and flexibility analysis; AND
4. the date, time, and place of any public hearings

Question 5

State Administrative Procedure Act - Is a public hearing required?

Answer 5

No unless a state statute specifically requires the hearing

Question 6

State Administrative Procedure Act - When is a rule not effective?

Answer 6

Except for emergency rules and certain other specified rule, a rule is not effective until it is filed with the Secretary of State and the notice of adoption is published in the State Register

Question 7

State Administrative Procedure Act - Notice of adoption requirements

Answer 7

Must contain similar information required in the notice of the proposed rule AND must also include the effective date of the rule and an assessment of the public comments received on the rule

Question 8

Adjudication Proceeding Definition

Answer 8

Any activity, other than rule-making or employee discipline, in which a determination is required by law to be made only on the record and after a hearing

Question 9

Adjudication Requirements

Answer 9

he agency must provide a party with a hearing on the record before an impartial officer having the power to administer oaths and issue subpoenas; it must keep a complete record of the proceeding; and the final determination must be in writing and include findings of fact and reasons for the decision (SAPA 301,302,303, 304, 307).

Question 10

Due Process Requirements

Answer 10

A party to an administrative proceeding must be afforded the due process protections of the Fourteenth Amendment and the New York State Constitution, i.e., a short and plain statement of the matters asserted, an opportunity for a hearing within a reasonable time, reasonable notice of such hearing, and an opportunity to present written argument on issues of law and evidence on issues of fact (SAPA 301).

Question 11

Discovery - Governing Procedures

Answer 11

Not governed by the CPLR

Each agency may adopt rules for discovery and depositions to the extent and matter appropriate to its proceedings, and the parties are subject to these rules

Question 12

Discovery - Rules of Evidence

Answer 12

The formal rules of evidence contained in the CPLR do not apply to administrative hearings, BUT rule of privilege do, and a party has the right to cross

Question 13

Discovery - Burden of Proof

Answer 13

Except as otherwise provided by statute, the burden of proof is on the party who initiates an administrative proceeding

Question 14

Discovery - Right to Counsel

Answer 14

All persons appearing at the hearing are accorded the right to be accompanied, represented and advised by counsel

Question 15

Res Judicata and Collateral Estoppel Effect

Answer 15

These doctrines are generally applicable to quasi-judicial administrative determinations that are made pursuant to the adjudicatory authority of an agency employing procedures substantially similar to those used in a court of law

Question 16

Res Judicata and Collateral Estoppel Effect Limitations

Answer 16

Where a party is a nominal party or did not have a full and fair opportunity to litigate the material issue before the agency, the doctrines will not be applied

Question 17

Administrative Investigations - Broad Powers

Answer 17

May exercise those powers expressly authorized by their enabling statutes, including the power to conduct administrative investigations

Question 18

Administrative Investigations - The ability to issue subpoenas

Answer 18

Agencies have the ability in furtherance of an investigation to issue subpoenas to compel the attendance of witnesses or the production of evidence

Question 19

Administrative Investigations - How to justify a subpoena?

Answer 19

The agency must make a preliminary showing that the information sought in the subpoena is reasonably related to a proper subject of inquiry and that there is some basis for inquisitorial action

Question 20

Administrative Subpoenas - Authority of Officers

Answer 20

They are authorized to issue subpoenas at the request of any party

Question 21

Administrative Subpoenas - Independent of Statutory Authorization

Answer 21

Statutes governing adjudicatory proceedings before particular agencies may independently confer subpoena power, and if there is a specific statutory grant, the agency’s power to issue subpoenas is derived solely from such grant

Question 22

Administrative Subpoenas - General Subpoena Power

Answer 22

In the absence of a statutory grant of subpoena power, agencies and attorneys of record for any party to the proceeding are granted the general subpoena power afforded courts and attorneys under CPLR 2302

Question 23

Administrative Subpoenas - A request to withdraw a subpoena

Answer 23

Must first be made to the person who issued it, and motions to quash or enforce administrative subpoenas are not part of the hearing process and MUST be made in Supreme Court

Question 24

Judicial Review - Preconditions to Judicial Review (Standing: Who is it available to?)

Answer 24

Persons who have suffered an unfavorable administrative decision and those that have a stake in the outcome of the administrative process, but whose injury is less direct

Question 25

Judicial Review - Preconditions to Judicial Review (Standing - 2 Step Process for Evaluation)

Answer 25

1. A party must show some harmful effect, whether economic or non-economic; AND 2. the interest sought to be protected must be arguably within the zone of interest to be protected by the statute under which the agency has acted

Question 26

Judicial Review - Preconditions to Judicial Review (Exhaustion of Administrative Remedies - What must parties do before going to Court?)

Answer 26

A party must attempt to obtain whatever administrative relief must be available before proceeding to courts. This includes utilizing procedures for both administrative hearings and internal administrative appeals

Question 27

Judicial Review - Preconditions to Judicial Review (Exhaustion of Administrative Remedies - Exceptions to the General Rule) - 4

Answer 27

1. Agency actions that are challenged as either unconstitutional or 2. Wholly beyond the agency's grant of power or 3. When resort to an administrative remedy would be futile or 4. Its pursuit would cause irreparable injury

Question 28

Judicial Review - Preconditions to Judicial Review (Exhaustion of Administrative Remedies - Exceptions to the Exceptions [constitutional claims])

Answer 28

Unless the claim is that the underlying statute is unconstitutional in its entirety, the mere assertion of a violation of a constitutional right does not always avoid the requirement to exhaust administrative remedies

Question 29

Judicial Review - Preconditions to Judicial Review (Exhaustion of Administrative Remedies - Exceptions to the Exceptions [factual issues])

Answer 29

If a constitutional claim hinges on factual issues, the necessity record must be established at the administrative level

Question 30

Judicial Review - Preconditions to Judicial Review (Exhaustion of Administrative Remedies - Exceptions to the Exceptions [Statutory Remedies])

Answer 30

If the underlying statute provides an exclusive administrative remedy, the futility and irreparable injury exceptions do not apply

Question 31

Judicial Review - Preconditions to Judicial Review (Ripeness and Finality - When are actions final and ripe for judicial review?)

Answer 31

If a party to an administrative adjudication pursues all avenues of relief open within the agency without a satisfactory result, the administrative determination is final and ripe for judicial review (CPLR 7801 [1]). An administrative agency action is final and ripe for review if it imposes an obligation, denies a right or fixes some legal relationship as a consummation of the administrative process, resulting in an actual, concrete injury (Essex County v Zagata, 91 NY2d 447 [1998]).

Question 32

Judicial Review - Preconditions to Judicial Review (Statute of Limitations) How long is the SoL?

Answer 32

Unless otherwise provided by law, a proceeding against a body or officer must be commenced within 4 months after the determination to review becomes final and binding (CPLR 217)

Question 33

Judicial Review - Review of Agency Actions (What is the standard of review for agency decisions?)

Answer 33

Whether the agency's decision is supported by a rational basis or was affected by an error of law or was arbitrary and capricious or an abuse of discretion

Question 34

Judicial Review - Review of Agency Actions (Findings of Fact - What is the standard of evidence in situations where there is formal hearing?)

Answer 34

Supported by Substantial Evidence Lesser standard than a preponderance of evidence or evidence beyond a reasonable doubt

Question 35

Judicial Review - Review of Agency Actions (Substantial Evidence Standard Definition)

Answer 35

Such relevant proof as a reasonable mind may accept as adequate to support a conclusion

Question 36

Judicial Review - Review of Agency Actions (Findings of Fact - What is the standard of evidence where there is no formal adjudicatory hearing?)

Answer 36

Rational basis for the determination or if it was arbitrary and capricious

Question 37

Judicial Review - Review of Agency Actions (Discretionary Determinations - When can an agency's discretionary acts and policy decisions be set aside?)

Answer 37

May be set aside only if there is no rational basis for the exercise of discretion AND the act complained of is arbitrary and capricious (taken without sound basis in reason or regard to the facts)

Question 38

Judicial Review - Review of Agency Actions Discretionary Determinations - When can administrative disciplinary penalties may be set aside?

Answer 38

Only if such punishment constitutes an abuse of discretion Bus be upheld unless it is so disproportionate to the offense in light of all circumstances as to shock one's sense of fairness