Welcome to PP600: Administrative Law Welcome to PP600: Administrative Law

Unit 4 SeminarUnit 4 SeminarAll About Judicial FunctionsAll About Judicial Functions

Professor Patricia Maitland, J.D., Ph.D.Professor Patricia Maitland, J.D., Ph.D.

Judicial Functions of Judicial Functions of Administrative AgenciesAdministrative Agencies

Administrative HearingsAdministrative Hearings Formal vs. InformalFormal vs. Informal

Due ProcessDue Process SubstantiveSubstantive ProceduralProcedural

The role of the Administrative Law The role of the Administrative Law JudgeJudge

Types of Decisions Handed DownTypes of Decisions Handed Down

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Rulemaking vs. AdjudicationRulemaking vs. Adjudication

RulemakingRulemaking

Quasi-legislativeQuasi-legislative PrespectivePrespective General applicabilityGeneral applicability

AdjudicationAdjudication

Quasi-judicialQuasi-judicial ProspectiveProspective Specific applicabilitySpecific applicability

AdjudicationAdjudication

Agency performs a quasi-judicial taskAgency performs a quasi-judicial task Types of AdjudicationTypes of Adjudication

FormalFormal InformalInformal

Agency applies a particular set of facts to Agency applies a particular set of facts to a particular person or entitya particular person or entity

Formulation of an “order” – the final Formulation of an “order” – the final disposition of agency businessdisposition of agency business

ExampleExample

Student fills out an application for a Student fills out an application for a federal Stafford loan and forwards to federal Stafford loan and forwards to the Dept. of Education. The ED the Dept. of Education. The ED reviews the form, determines the reviews the form, determines the Expected Family Contribution, and Expected Family Contribution, and determines the amount of financial determines the amount of financial aid to be given. The financial aid aid to be given. The financial aid amount is the agency “order”.amount is the agency “order”.

Role of the ALJRole of the ALJ(Federal APA)(Federal APA)

Administer oaths and affirmations Administer oaths and affirmations Issue subpoenasIssue subpoenas Rule on and receive evidence Rule on and receive evidence Take depositions or have depositions takenTake depositions or have depositions taken Regulate the course of the hearing Regulate the course of the hearing Hold settlement conferences and/or use alternate means of Hold settlement conferences and/or use alternate means of

dispute resolution dispute resolution Act on procedural requestsAct on procedural requests Make or recommend decisions Make or recommend decisions Take other action authorized by agency rule consistent with the Take other action authorized by agency rule consistent with the

Administrative Procedure Act.Administrative Procedure Act.

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Formal AdjudicationFormal Adjudication

Those pursuant to APA § 554, 556, 557Those pursuant to APA § 554, 556, 557 Required by statute to be:Required by statute to be:

Determined on the record Determined on the record After opportunity for an agency hearingAfter opportunity for an agency hearing

Formal Adjudication Formal Adjudication RequirementsRequirements

Notice Notice Time, place, nature, legal authority & jurisdiction, Time, place, nature, legal authority & jurisdiction,

matters of fact and law assertedmatters of fact and law asserted

Burden of proof Burden of proof on the proponenton the proponent

EvidenceEvidence Reliable, probative and substantialReliable, probative and substantial

Hearsay evidence is admissible Hearsay evidence is admissible

ALJALJ - Administrative Law Judge presides - Administrative Law Judge presides

Formal Adjudication (cont’d)Formal Adjudication (cont’d)

Initial Decision (the trend)Initial Decision (the trend) Automatically becomes the decision of Automatically becomes the decision of

the Agencythe Agency Recommended DecisionRecommended Decision

Agency makes final determinationAgency makes final determination

Formal Adjudication (cont’d)Formal Adjudication (cont’d)

Prohibition on ex-parte Prohibition on ex-parte communicationscommunications

Oral or written communications not on the Oral or written communications not on the public record that not all parties are given public record that not all parties are given reasonable prior notice ofreasonable prior notice of

Can communicate outside the presence of Can communicate outside the presence of interested parties interested parties

Hearsay Side BarHearsay Side Bar

Information gained or acquired from another and not part of one’s direct knowledge

- and –Offered to establish the truth of the matter asserted

Example:

What if what is being asserted is that Cynthia did not like Kensleen?

Asserted: Cynthia Punched KensleenAsserted: Cynthia Punched Kensleen

Cynthia

Kensleen

I punched Kensleen in the nose and she deserved it!

I punched Kensleen in the nose and she deserved it!

WitnessMyoreen

Cynthia told me she punched Kensleen

because she deserved it.

Cynthia told me she punched Kensleen

because she deserved it.

The statement was made out of court and is being offered to prove the assault took place.

Asserted: Cynthia Doesn’t Like KensleenAsserted: Cynthia Doesn’t Like Kensleen

Cynthia

Kensleen

I punched Kensleen in the nose and she deserved it!

I punched Kensleen in the nose and she deserved it!

WitnessMyoreen

Cynthia told me she punched Kensleen

because she deserved it.

Cynthia told me she punched Kensleen

because she deserved it.

Myoreen has been asked if Cynthia disliked Kensleen.

Informal AdjudicationInformal Adjudication

““required by statute to be required by statute to be determined on the record after determined on the record after opportunity for an agency hearing.”opportunity for an agency hearing.”

Directs us to the applicable enabling or Directs us to the applicable enabling or organic statute for clarification of what organic statute for clarification of what is required (i.e. the hearing procedures is required (i.e. the hearing procedures contained in the enabling act).contained in the enabling act).

Informal Adjudication RequirementsInformal Adjudication Requirements

May be represented by counselMay be represented by counsel May appear in person, via "duly qualified representative" or by May appear in person, via "duly qualified representative" or by

counsel in an agency proceeding. counsel in an agency proceeding. Interested persons but not party to the proceeding may appearInterested persons but not party to the proceeding may appear Agency must conclude matters before them in a reasonable Agency must conclude matters before them in a reasonable

time. time. May not issue process or engage in investigations except as May not issue process or engage in investigations except as

legally authorized. legally authorized. Participants entitled to a copy or transcript of their evidence or Participants entitled to a copy or transcript of their evidence or

testimony. testimony. Agency may issue subpoenas to compel appearance. Agency may issue subpoenas to compel appearance. Agency must give prompt notice of the denial of an Agency must give prompt notice of the denial of an

application, petition or other request. application, petition or other request. Denial must be accompanied by a brief statement of reasons. Denial must be accompanied by a brief statement of reasons.

Goals of Hearings & Goals of Hearings & AlternativesAlternatives

AccuracyAccuracy ConsistencyConsistency Responsiveness Responsiveness Efficiency Efficiency Cooperation Cooperation Individual dignityIndividual dignity EffectivenessEffectiveness

Alternatives to hearingsAlternatives to hearings

Objective rulesObjective rules Informal processesInformal processes Nonjudicial reviewing bodiesNonjudicial reviewing bodies Bureaucratic rationalityBureaucratic rationality

Summary TableSummary TableRulemaking Adjudication

Informal •Publication •Notice •Participation •Statement of basis & purpose• 30 Day delay

Notice§555(e)

Formal •Notice•Hearing•Intermediate & final decision•30 Day delay

•Notice•Informal Settlement•Separation of functions•Hearing•Intermediate & final decision•Declaratory orders

Due ProcessDue Process

Due process is what is required when the government deprives an individual of a protected interest that is recognized as falling into one of the three categories (Life, Liberty, Property)

55thth Amendment Amendment No person shall… be deprived of life, liberty, or No person shall… be deprived of life, liberty, or

property, without due process of law. property, without due process of law.

1414thth Amendment (Applies to States) Amendment (Applies to States) No State shall deprive any person of life, No State shall deprive any person of life,

liberty, or property, without due process of law.liberty, or property, without due process of law.

Due Process Clauses Due Process Clauses 55thth & 14 & 14thth Amendments Amendments

““Name that Right”Name that Right”

What constitutes a protected What constitutes a protected "liberty" or "property" interest under "liberty" or "property" interest under the Due Process Clause? the Due Process Clause? 

List liberty & property privilegesList liberty & property privileges

Life, Liberty and Property

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Life, Liberty and Property Life Marry Procreate Raise children free from

governmental interference

Equal treatment Freedom of thought Religious belief Education Pursuit of happiness Vote Right to Petition the

government Privacy Interstate travel

SpeechSpeech PressPress Assembly/AssociationAssembly/Association Bear armsBear arms Against quartering troopsAgainst quartering troops Unreasonable search & seizureUnreasonable search & seizure Due ProcessDue Process No double jeopardyNo double jeopardy No Self incriminationNo Self incrimination Eminent domainEminent domain Trial by juryTrial by jury Right to counselRight to counsel No cruel or unusual punishmentNo cruel or unusual punishment

Due ProcessDue Process

The exercise of government power under The exercise of government power under the law with regard for the essential and the law with regard for the essential and fundamental rights of individuals fundamental rights of individuals

Two types:Two types: Procedural Procedural

how the law is just; source of fairness in the how the law is just; source of fairness in the ConstitutionConstitution

Substantive Substantive why the law is just; source of fairness beyond the why the law is just; source of fairness beyond the

ConstitutionConstitution

Procedural Due ProcessProcedural Due Process

When the government deprives a When the government deprives a person of a protected interest, what person of a protected interest, what process is due?process is due? 1. Is there a property interest 1. Is there a property interest

(entitlement)?(entitlement)? 2. Is there a liberty interest?2. Is there a liberty interest?

Some CasesSome Cases

Goldberg v. KellyGoldberg v. Kelly

Ingraham v. WrightIngraham v. Wright

The Elements of Due ProcessThe Elements of Due Process

1.1. Timely and adequate notice Timely and adequate notice detailing the reasons for the proposed detailing the reasons for the proposed

termination termination

of benefitsof benefits

2.2. Effective opportunity to defend Effective opportunity to defend present oral evidence and arguments present oral evidence and arguments Confront adverse witnessesConfront adverse witnesses

3.3. Assistance at the hearing of self-retained counselAssistance at the hearing of self-retained counsel4.4. Impartial decision makerImpartial decision maker5.5. Decision maker’s conclusions must rest entirely on Decision maker’s conclusions must rest entirely on

legal rules applied to evidence adduced in the legal rules applied to evidence adduced in the hearing. hearing.

6.6. Decision should state reasons for the determination Decision should state reasons for the determination and indicate the evidence relied upon.and indicate the evidence relied upon.

You Be The JudgeYou Be The Judge

In the following scenarios, determine what In the following scenarios, determine what type of process is due to the complainant.type of process is due to the complainant.

Remember to check for:Remember to check for: 1. Is there a property interest (entitlement)?1. Is there a property interest (entitlement)? 2. Is there a liberty interest?2. Is there a liberty interest?

Scenario #1Scenario #1

Mary was admitted to her state’s university and provided with Mary was admitted to her state’s university and provided with a full scholarship. In her second year at the university, one of a full scholarship. In her second year at the university, one of Mary’s professors informs the Dean that Mary committed Mary’s professors informs the Dean that Mary committed plagiarism in a recent writing assignment. The penalty for plagiarism in a recent writing assignment. The penalty for plagiarism at the university is immediate revocation of plagiarism at the university is immediate revocation of scholarship funding and expulsion. Mary admitted that she scholarship funding and expulsion. Mary admitted that she plagiarized but wants an opportunity to explain to the plagiarized but wants an opportunity to explain to the university that she was under severe personal and academic university that she was under severe personal and academic pressure and that those circumstances mitigate the pressure and that those circumstances mitigate the plagiarism. The University has denied Mary’s request for a plagiarism. The University has denied Mary’s request for a

hearing. Are Mary’s due process rights being violatedhearing. Are Mary’s due process rights being violated??

Scenario #2Scenario #2John, a student at his state’s law university, was found to have John, a student at his state’s law university, was found to have

plagiarized a final paper during his last semester. The penalty plagiarized a final paper during his last semester. The penalty for plagiarism at the university is immediate expulsion. The for plagiarism at the university is immediate expulsion. The university feared that John would file a lawsuit, which it could university feared that John would file a lawsuit, which it could not afford to defend, and did not expel John. However, after not afford to defend, and did not expel John. However, after John graduated, the university sent a letter to the State Board John graduated, the university sent a letter to the State Board of Bar Examiners informing them that John had engaged in of Bar Examiners informing them that John had engaged in plagiarism while attending the university. Have John’s due plagiarism while attending the university. Have John’s due process rights been violated?process rights been violated?

Scenario #3Scenario #3

Jane is a prisoner in a state facility. She has a disruptive Jane is a prisoner in a state facility. She has a disruptive influence on the other inmates resulting in outbreaks of influence on the other inmates resulting in outbreaks of violence amongst the inmate population. The prison violence amongst the inmate population. The prison authorities determined that she should be removed from the authorities determined that she should be removed from the general population and transferred to a maximum security general population and transferred to a maximum security facility where visits from her chronically-ill, 9-year old facility where visits from her chronically-ill, 9-year old daughter will be reduced from once a week to once a month. daughter will be reduced from once a week to once a month. Jane was moved to the maximum security facility without Jane was moved to the maximum security facility without being informed by the authorities of the change or the reason being informed by the authorities of the change or the reason why. Are Jane’s due process rights being violated?why. Are Jane’s due process rights being violated?

Scenario #4Scenario #4

Matt is a prisoner in a medium security state facility. Matt’s Matt is a prisoner in a medium security state facility. Matt’s behavior has become increasingly erratic and unstable behavior has become increasingly erratic and unstable causing the prison authorities to transfer Matt to a mental causing the prison authorities to transfer Matt to a mental institution for behavior modification. Behavior modification institution for behavior modification. Behavior modification at the mental institution involves drug therapy. Matt was at the mental institution involves drug therapy. Matt was transferred to the mental institution without being informed transferred to the mental institution without being informed of the move, the reason for the transfer, or the anticipated of the move, the reason for the transfer, or the anticipated behavior modification therapy. Are Matt’s due process rights behavior modification therapy. Are Matt’s due process rights being violated?being violated?

That Concludes this Week’s That Concludes this Week’s SeminarSeminar

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