1. Involves state or local agency - Board, State Department, Commission (other than legal/court)

2. Legislative Authority in statute - To write rules, impose penalty, hear appeals

3. Significant constitutional law issue also raised - Equal Protection, due process, 1st amendment

Identify What Law Applies

(Admin)

1. Federal or State Constitution - applies to local agencies with local functions, AG's office, Department of Corrections, prison disciplinary proceedings, legislature, judiciary, WSBA

2. State APA - applies to all WA state agencies, boards of state universities-personnal issues only, local agencies - performing state functions/apply state law

3. Agency's own statute or regulations

4. For local agencies - common law

Administration (executive)

Rule Making (legislative)

Adjudication (court)

Investigative (police)

Agency Action

Administering Policies

1. Was the agency legally formed? 

a. Legislature failed to properly delegate authority to agency to act

b. Enabling legislation (creates agency) has no standards/guidelines and procedural safeguards

c. w/o standards, agency action can be arbitrary or abusive

d. courts require minimal showing of proper delegation of power (in stat/leg history)

2. Did the agency exceed its authority?

a. Ultra vires - agency goes beyond power given in enabling legislation

Agency Action

Rule Making

1. Does the agency have authority to make the rule?

Ultra vires - agency oversteps its authority in the rule

2. Does the agency promulgate or fail to promulgate a rule?

No rule - unenforceable under APA

3. Does the rule violate the constitution

4. Is the rule irrational? Arbitrary & capricious standard, violate SDP, no legitimate purpose and no standards

Does the agency action meet the DEFINITION of a

RULE

RULE = any agency order, directive or regulation of general applicability that...

• Subjects a person to a penalty
• Effects procedures in administrative agency hearings
• Relates to public benefits or privileges conferred by law
• Relates to issuance or suspension of commercial/professional license
• Relates to any mandatory standards for any product or material which must be met before distribution/sale

• Statements of internal agency policy
• interpretive/policy statements
• traffic restrictions
• rules of state institutions of higher education

APA requires notice of proposed rule & comment period (otherwise invalid/unenforceable); must substantially apply or void

1. Pre-notice inquiry:

2. Notice of proposed rulemaking (20 days)

3. Public participation opportunity (opportunity to comment)

4. Concise Explanatory Statement & RM File

5. Justification for Significant Legilative Rules

6. Variance between proposed and Final rule

7. Publication

Pre-Notice inquiry

(APA rule making process)

Notice

(APA Rulemaking Requirement)

Published in state register at least 20 days prior to rulemaking session

Include:

1. reference to statutory authority for adopting rule

2. summary of proposed rule

3. Short explanation of purpose & anticipated effects of rule

4. Info regarding time, manner, and place for public input

Comment

Public Participation Opportunity

(Rulemaking Procedures)

• Written comment must be accepted if received by date specified in notice;
• must also provide reasonable opportunity to present oral comment at rulemaking hearing open to public

All comments must be considered

Record must be made of hearing

Concise Explanatory Statement &

Rule Making file

(Rulemaking procedure)

Occurs before filing rule

CES must created that includes:

(1) reasons for adopting rule,

(2) differences between proposed rule and final rule and reasons for them,

(3) summarize and response to substance of all comments received re:proposed rule

Provide to all who request a copy and to those who provided comment

Agency must maintain file on each proposed and final rule; file must be detailed and include CES

Judicial rule is based on file

Justification for Significant Legislative Rules

(Rulemaking procedure)

Rules that are not procedural or interpretative and that don't: (1) adopt substantive requires ments that subject a violator to penalty; (2) change teh requirements of obtaining or keeping a license; (3) adopt a new or signficant change to policy or regulatory program. 

Prior to adopting the rule, the agency must show that the rule is:

(1) justified in light of the goals

(2) supported by a cost/benefit analysis

(3) the least burdensome alternative

(4) Consistent and coordinated with other fed/state/local laws

(5) supported by justification in the rulemaking file

Variance between Proposed & Final Rule

(Rulemaking Procedure)

If rulemaking results in rule that is substantially different from the proposed rule, the agency must:

(1) file a supplemental notice seeking additional public input; OR

(2) withdraw the proposed rule and commence new rulemaking proceeding

If the agency adopts a rule that varies from the proposed rule w/o filing supplemental notice - general subject matter of the rule must remain the same as the proposed rule.

Within 60 days of publication of adopted rule, anyone may petition agency to amend any portion of the rule that is substantially different from proposed rule

Publication

(Rulemaking procedure)

Each agency must file with the code revisor a certified copy of all rules it adopts

Except for emergency rules, all rules become effective 30 days after the date of filing, unless a later date is specified in the rule

Agency Action

Adjudication

1. Is the agency making an individualized discrimination requiring an adjudicatory proceeding?

2. Right to an administrative hearing?

3. If a local agency, did the agency process violate constitutional minimal due process?

4. If a state agency, did the agency violate APA hearing procedures?

1. Ultra vires - if rule exceeds agencies delegated authority, rule is void

2. Violation of APA Procedures - rules that are not promulgated in "substantial compliance" with APA procedures are void

3. Violation of Constitution - Any violation of US or WA constitutions are void and struck down upon judicial review

4. Arbitrary & Capricious - rule is void if its arbitrary & capricious - 3 part test (1) court should look at agency's explanation of its own rule to see if it is clear; (2) court should examine whether the agency used appropriate statutory framework & whether it used correct factors in determining rule; (3) court must decide if agency reached its conclusion by some reasonable process; based on review of administrative record

1. Local agency - if agency denied life, libery, property interests

2. APA agencies - if the client is aggrieved by agency action

1. Reasonable notice

2. Opportunity to be heard - use balancing test - importance of individual's interest, risk of erroneous deprivation of interests with goverment's interest in cost and efficiency of providing additional safeguards

3. unbiased tribunal

4. pre-deprivation hearing required - critical benefits for survival taken away

1. Written notice of action

2. 20 days to request hearing after received notice

3. 7 days notice of hearing to all affected persons (date/time/place of hearings)

4. Opportunity to be heard (if not required hearing, right is waived)

5. Right to present evidence

6. Testimony under oath

7. Right to cross examine witnesses

8. Right to impartial decisionmaker

9. No ex parte communications - can be remedied w/opportunity to respond

10. Relaxed rules of evidence - allows hearsay (admissibility test: "reasonably prudent person would relay upon conduct of their affairs" - broad)

11. written order with findings of fact & conclusions of law, based on record

12. Appearance of fairness doctrine - if reasonably prudent disinterested observer would conclude that the parties did not obtain a fair, impartial, neutral hearing (developed by WA courts, not APA)

Agency Action

Investigation

1. Records - 5th amendment violation

2. Searches & inspections - 4th amendment violation

3. Subpoenas - statutory authority or 4th amendment violation

Investigative Function

Records

• No 5th Amendment privilege - gvt. can constitutionally require that a gvt-regulated business keep records that may be inspected by an administrative agency; no 5th amendment protection b/c records are quasi-public & 5th amendment protects only private papers
• Exceptions - gvt may not require records to be kept when (1) law does not explicitly require it; (2) there are no "public aspects" to the information demanded and (3) requires are directed at a selective group inherently suspect of criminal activities

Investigative Function

Searches & Inspections

Agency personnel search homes/businesses for compliance with building/fire/zoning and/or licensing requirements

General rule - warrant is required prior to search

lower probable cause standard - lower than that required for criminal cases; rolling inspections and block inspections ok under "reasonableness" standard

Exceptions - heavily regulated businesses, public areas, non-intrusive inspections

Investigative Function

Subpoenas

Must be statutory authority to subpoena witnesses and documents; must consult agency statute

Limits - (1) 4th Amendment requires that subpoena must not be too indefinite, must pertain to authorized inquiry, reasonable relationship between documents demanded and subject, subject must be w/in jurisdiction of agency; (2) 5th Amendment may be blocking devise, but narrowly construed in context of documents

Enforcement - use the courts to enforce; examine for 4th Amendment problems

1. Who has standing to appeal?

2. Statute of Limitations

3. Finality (appeal final order)

4. Exhaustion of administrative remedies

5. Ripeness (APA allows pre-enforcement review of rules)

Availability of Judicial Review

Standing

1. State agency - APA standard, "any person adversely affected or aggrieved"

2. Local agency - Constitutional standard - injury in fact + causation + redressability

Availability of Judicial Review

Statute of Limitations

1. Rulemaking - 2 years for procedural errors

2. Adjudication - 30 days from agency decision

Availability of Judicial Review

Exhaustion of administrative remedies

Must use all internal agency review procedures before going to court

Exception - if admin remedy is inadequate/futile/results in irreparable harm

1. Rulemaking

a) Seek declaratory judgment: declares rights, duties, obligations of each party

b) Rule void if error of law: de novo review

c) Rule void if not a product of a rational decision maker - arbitrary and capricious standard

2. Adjudication

a) Court can set aside, enjoin, remand, order agency action

b) Review of errors of law - de novo review

c) Review findings of fact- not supported by substantial evidence

d) order is arbitrary & capricious