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I. Overview
a. Heavily tested; But statutory based so accessible. (18/24 past exams).
b. Topics
i. Administrative rulemaking: The Quasi-Legislative Function
ii. Administrative adjudication: The Quasi-Judicial Function
iii. Judicial review of Administrative Decision
iv. Procedural DP
v. Public Information About Administrative Decisions: The Indiana Open Door
Law and Indiana Access to Public Records Act
IN Administrative Law
Introduction
I. AOPA (9/24)
a. General rule. Administrative Adjudications are subject to the Indiana
Administrative Orders and Procedures Act (AOPA).
b. Application. AOPA
i. Applies only to state executive branch,
ii. Creates statutory exceptions for certain state administrative agencies
and actions, and
iii. Sets minimal procedural rights.
1. A may adopt informal procedural rules consistent with AOPA.
II. Administrative Law Judges (ALJ) (4/24)
a. Basic Ground for ALJ Qualification: impartiality.
i. Note: An administrative adjudication may be made by one individual or by a
multi-member panel designated by the As final authority to act as the
ALJ(s)
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ii. [Not covered in class]ALJ subject to disqualification for: (i) bias, prejudice, or
interest in outcome (ii) failure to dispose of the subject of a proceeding in
orderly and prompt manner after written request of a party (iii) making public
comments, except as to hearing schedules or procedures, about pending or
impending proceedings (iv) Engaging in financial or business dealings that
reflect adversely on ALJs impartioaility, interfere with perofemenace of ALJ
duties, exploit ALJ position, or involve ALJ in frequent business dealings with
person who are likely to come before the ALJ, such as attorneys; or (v) Any
cause for which judge of a court may be disqualified.
iii. [Not covered in class] ALJ who believes own impartiality may be reasonably
questioned must either (i) w/draw as ALJ or (ii) inform parties of potential
basis for DQ, place brief statement of basis on record, and allow parties to
petition for DQ.
1. Party may petition for DQ upon discovering facts establishing grounds
for DQ.
b. Prohibited Ex Parte Communications
i. ALJ may not engage in ex parte communications, directly or indirectly,
with an individual who is a (P.I.P.P.)
1. Party to the proceedings,
2. Interested, directly or indirectly in the outcome,
3. Presided at previous state of proceedigns or
4. Prohibited from assiting the ALJ (ex. investigator, prosecutor,
advocate in the proceeding or subordinate of such individuals, RE any
issue in a proceeding wwhile pending unless authorized via statute).
a. May communicate with own staff assistance.
ii. An ex parte communication occurs when a
1. A prohibited individual communicates with the ALJ:
a. Without notice and opportunity for participation provided to
all parties and
b. An issue relevant to the pending proceedings is the subject of
the communication (critical).
iii. What action, if any, must ALJ take if receives ex parte communication?
1. Must: (i) Place on the record all written and oral information RE the
ex parte communication and (ii) Advise all parties that these matters
have been placed on the record.
iv. What action, if any, may party take after ex parte communication?
1. May petition for the ALJs disqualification.
III. Administrative Hearing Procedures
a. Key distinction. The normal rules of evidence do not apply.
i. Example. Hearsay.
1. ALJ can sustain the hearsay objection but nevertheless admit the
testimony.
2. However, the resulting order in hearing cannot be based solely
upon hearsay evidence if properly objected to and does not fall
within recognized exception.
ii. [Not covered in class]Exclusion of evid. Upon proper objection, ALJ must
exclude evidence that is irrelevant, immaterial, unduly repitious, or
excludable on constitutional or statutory grounds.
iii. Any e vid. May be received in written form if will expedite proceedings.
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b. [Not covered in class]
i. ALJ must
1. keep a record of the proceeding
2. Set time and place for hearing and reasonable written notice to
parties and pet. for int.
a. A must give at least 5 days notice of the hearing.
b. Notice to include: Copies of prehearing orders; names and
addresses of everyone given notice, including counsel appearing
on behalf of A; Official file/reference number; statement of time,
place, nature; statement of legal authority and jurisdiction;
contact info of ALJ; statement of issues involved and matters
known to be asserted; statement that party who fails to
participate may be held in default or have proceeding dismissed.
3. Issue findings of fact that are (i) based on evid. in the record and
on matters officially noted in the proceeding, and (ii) based on kind
of evid. that is substantial and reliable.
4. Issue order in writing within 90 days after hearing concludes or
after submission of proposed findings of fact by the parties unless
period waived by parties.
ii. Finality of decisionIf ALJ is ultimate authority of A, ultimate authoritys
order disposing of proceeding is final order. If not ultimate authority, ALJ
decision not final order unitl affirmed by the ultimate authority of the A.
1. If ALJ not, ultimate authority or its designee must issue final order
affirming, modifying, or dissolving ALJ order. OR may remand to ALJ
with or without instruction, subject to review after remand.
c. [Not covered in class] Other misc. matters
i. Intervention
1. At least 24 hours b/f hearing ALJ must issue order granting/denying
pet. for intervention in proceeding.
2. ALJ must grant if (i) petition (mailed to all parties) states facts
demonstrating petitioner has an unconditional right to intervene; or
(ii) submitted writing to ALJ (mailed to all parties) at least 3 days
before hearing, stating facts that demonstrate pet. is aggrieved or
adversely affected by order or that governing statute gives a
conditional right to int.
ii. DiscoveryALJ must at request of party/A issue subpoenas, discovery
orders, and protective order in accordance with Indiana Rules of Trial
Procedure.
iii. SJat any time after matter is assigned to ALJSJ on fewer than all issues
involved in proceeding or RE fewer than all claims or parties is not a final
order.
d. [Not covered in class] Administrative Review
i. Purpose is to correct errors at lower stages of admin. decisionmaking, while
judicial review is concerned with final level admin. action.
e. [Not covered in class] Petition ultimate authority for rehearing.
i. May be granted only if party demonstrates not in default, newly discovered
material evid. exists, and that evid. could not, by due diligence, have been
produced at hearing.
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IN Administrative Law Judicial Review of Administrative
Adjudications
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ii. Standing.NO individualized injury required. An individual DOES NOT need to
demonstrate any injury different than that suffered by public at larged.
iii. Attorneys fees are discretionary for the plaintiff if the P prevails.
1. Exception. No initial filing with the Public Access Counselor
(responsible for ensuring knowledge of and compliance with the ODL)
2. For Defendant/Agency if prevails and action was frivolous or
vexatious.
3. Note: Recent statutory amendmentODL standard not prevails
instead of substantiall prevails; and RE P, no longer required to show
Ds violation knowing and intentional.
a. PRA standard remains substantially prevails for both sides, but
P need not should Ds violation knowing and intentional to
receive attorney fees.
iv. Example. Violating the Spirit of the ODL/Knight Challenge/Serial meeting.
1. Found no meeting b/c majority of Board of Trustees did not
simultaneously convene.
2. In 2007, IN legislature enacted legislation deeming this type of serial
meeting in which a majority attends to conduct official business
on a particular subject within a seven day period to constitute
a meeting.
v. Example. Violating the ODL b/c NOT an Executive session exception b/c
exception (i) requires 48 hour notice and citation to statutory basis and (ii)
cannot occur during an open meeting.
1. Can P get decision voided? ONLY IF can demonstrate violation of ODL
substantiall affect the substance of the boards final action.
(??)
2. If upholds decision, despite ODL violation, may P recover attorney
fees? Yes, in the courts discretion may be awarded in order to
discourage further violations of the ODL. (??)
III. The Indiana Access to Public Records Act (1/24)
a. Purpose. To ensure all person entitled to full and complete access to information RE
workings of gov.
b. Scope. A Public Agency subject to PRA includes any body exercising executive,
legislative, administrative or judicial duties. (PRA does include Judiciary; ODL
does not)
c. General Rule. There is a right to inspect and copy public records.
d. A Public Record is Broadly Defined to include any material created, received,
retained, maintained, or filed by the public agency.
e. 12 Mandatory Exceptions. An A shall not disclose public records which fall
within 12 statutory exceptions.
i. Examples. Records declared confidential by state or federal law, records
contining trade secrets, grade transcripts or license examination scores
(including IN Bar), and autopsy photographs.
f. 21 Discretionary Exceptions. In its discretion, and A may refuse to disclose
public records which fall within 21 statutory exceptions
i. Examples. Investigatory records of law enforcement agencies, diaries, and
test question used in licensing examinations.
g. Form of Requests for Public Records: Particular in Substance and Form. In
requesting public info. must:
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i. Identify the record with reasonable particularity and
ii. At the agency discretion, place the request in writing or on form provided.
h. What constitutes a Denial?
i. Oral. Upon official denial or after 24 hours of denial by any agency employee.
ii. Written. Within 7 days by detailed writing.
i. Actions for Violation of Public Records Act
i. Remedy. A court may compel inspection.
ii. Attorney fees. Discretionay
1. For P: IF substantially prevails.
2. Exception: No initial filing by P with Public Access Counselor.
3. For D/Agency: If D substantially prevails AND action was
frivolous or vexatious.
4. Recall amendments noted above.
j. Example. Public Record? No, affidavit is not a public record b/c not received by the
court. To be received within meaning of PRA, court must have taken possession
and control of the document.
i. Note: Without a public record, the PRA is inapplicable. Therefore, PRA
requirement of response in writing within 7 days also inapplicable. STOP at
threshold question.
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