Lecture 18 - Administrative Law And Ny And Mbe Torts Part I

Front 1

What is ADMINISTRATIVE AGENCY LAW (AAL)?

Back 1

AAL is simply the delegation of power from the legislature that created the AA to the executive branch that oversees AAs and who appoints the CEO of the AA and all of its employees.
Under NY's constitutional doctrine of separation of powers, when the legislature creates an AA, it must impose basic general guidelines within which the agency is to function. The AA may not legislate on its own, but must function within those guidelines drawn by the legislature. Under the AA's implied powers that are necessary and proper to carry out the legislative delegation of authority, the AA may enact legislative rules.

Front 2

What happens is the AA oversteps its legislative boundaries?

Back 2

If the AA oversteps its legislative boundaries established by the state legislature, then its actions violate the separation of powers doctrine and are unconstitutional.

Front 3

What does the NY state constitution mandate in regards to the legislative powers of the state?

Back 3

The NY state constitution mandates that the legislative powers of the state shall be vested in the state assembly and the senate and that any legislation be subject to veto by the governor. The legislature cannot constitutionally transfer its lawmaking function to an AA. However, it may constitutionally delegate to an AA, the power to administer a general law enacted by the legislature and because of the expertise of the AA, it can enact rules to fill in the details of the broad powers delegated by the legislature, but that AA cannot branch out and write on a clean slate without legislative guidance in the legislative bill.

Front 4

The line between legislative "policy making" (prohibited) and AA rule making which is permitted is not always clear. Please explain further.

Back 4

In this area, courts look at whether the AA usurped the legislative lawmaking authority by passing a totally new law.
Example: The Board of Health was found to have infringed into an area that should have been dealt with by the legislature when the AA enacted a law limiting the cup size of soft drinks that could be served at fast food restaurants. This was an area that previously the legislature had unsuccessfully tried to legislate. Thus, the AA's new rule in this area violated the separation of powers doctrine.

Front 5

What do guidelines provided by the state legislature have have to be when it creates an AA?

Back 5

The guidelines provided by the state legislature when it creates an AA only have to be broad and general giving overall guidance as to the AA's limitations. Then, the AA with its expertise, then enacts necessary rules to carry out the state legislature's intent. However, notice to the public of any proposed rules or amendments have to be published in NYCRR (NY Code of Rules and Regulations) maintained by the NY Secretary of State (85 volumes) and must give the public and interested people a 45 day comment period.

Front 6

Do hearings have to be held?

Back 6

Hearings do not have to be held unless hearings were required in the AA's Enabling Act.

Front 7

Why does FOIL (Freedom of Information Law) exist?

Back 7

FOIL exists to promote transparency in government functioning throughout all government AA's and all branches of government. It gives citizens, interested groups, and the press access to the records of state or municipal AAs and it compels public disclosure by AAs of documents or ESI (electronically stored information). The legislature has expressly stated that the government and AAs and their functions are the public's business. Thus, the public must have access to almost all agency records.

Front 8

How many days does an AA have to respond to a FOIL request?

Back 8

An AA has 5 days to respond to a FOIL request (i.e., to grant it, to deny it or to at least acknowledge the request).

Front 9

What happens if the FOIL request is denied?

Back 9

If the foil request is denied, then the requester has 30 days to appeal to the CEO of the AA. If the CEO does not respond within 5 days, it can be deemed a denial and a CPLR Article 78 can be commenced for a court review.

Front 10

What happens if the requesting party “substantially prevails”?

Back 10

If a requesting party "substantially prevails" in the FOIL CPLR Article 78 proceeding (i.e. she gets most of the documents she requested), then in the court's discretion, she can seek her attorney's fees to be paid by the AA.

Front 11

FOIL exceptions involve what 2 things?

Back 11

1. an ongoing investigation or
2. exam questions

Front 12

What does open meeting law entail?

Back 12

In order to allow the press and public access to observe officials at work, most AA meetings and many governmental meetings (where 2 or more officials meet) must be conducted in an "open meeting" (e.g. (1) the school board, (2) a zoning board, (3) a town board, an (4) AA meetings)

Front 13

This law allows an exception for "executive sessions" if that session involves what 3 things?

Back 13

1. law enforcement matters or public safety
2. proposals to conduct investigations
3. sale or lease of realty.

Front 14

Before commencing a CPLR Article 78 for judicial review of an AA's determination, the appellant must do what?

Back 14

Must exhaust all available administrative remedies.

Front 15

There are 3 exceptions to the exhaustion rule, what are they?

Back 15

1. The AA's conduct was outside its legislative grant of authority or its conduct was unconstitutional
2. it would be futile (i.e. where no administrative relief would be possible) or
3. where the petitioner faces irreparable harm by continuing to exhaust the administrative process

Front 16

What is the Judicial Review of AA?

Back 16

The process is a CPLR Article 78 Special Proceeding in the NY Supreme Court to quickly challenge state or municipal AA determinations. It is an action that is brought into court with the speed of a motion.

Front 17

How long is an Article 78 governed for?

Back 17

Unless a shorter time period is otherwise provided, an Article 78 is governed by a 4 month s/l. CPLR 217. But, a zoning decision including a variance request to the zoning board of appeals must be commenced within 30 days.

Front 18

How long does the person commencing the Article 78 petition have to serve the AA?

Back 18

The Article 78 petition commencing the special proceeding must be served on the AA at least 20 days before the petition is to be heard in court (8 days in most other special proceedings).

Front 19

The AA's answer to the petition (the complaint) must be served how many days before the court hears the case?

Back 19

5 days before the court hears that case.

Front 20

In an Article 78, court permission (a motion) is required when a party seeks AID. What does AID stand for?

Back 20

A - to take an immediate appeal of a court's interlocutory order
I - for a defendant to implead a 3rd party into the proceeding
D - pretrial discovery except a notice to admit or a demand for a bill of particulars asking a party to amplify her pleading can be served without a court order.

Front 21

There are two types of CPLR Article 78s used to challenge a final AA determination in court, explain the first one.

Back 21

1. A NY Supreme Court review of whether the AA's determination was CIA (irrational or arbitrary) in which the court gives a very deferential review of that determination. Thus, when an AA acts within its area of expertise, that decision will be upheld by the courts as long as it is not irrational.
Example: An AA's decision that neither adhered to its own prior precedent nor indicated any reason for reaching a different result in essentially the same facts and circumstances, is arbitrary and capricious.
Whether a student should have received a higher grade raises purely academic issues that are beyond the jurisdiction of the NY courts.

Front 22

Officers, directors, or corporate employees may be indemnified by the corporation on 1 of 3 grounds. Please explain grounds number 2.

Back 22

2. An appellate division review of an AA's trial type hearing that is required by law in which evidence is taken under oath, cross examination is permitted, and a transcript record was made. For example, hearings on unemployment benefits, civil service disciplinary matters, workers' compensation claims, prison disciplinary hearings, the Board of Health's denial of Medicaid benefits, a NYC traffic ticket determination, or the grievance committee's disbarment of an attorney.
The standard for the appellate division's review is whether the AA's decision after the hearing was supported by SUBSTANTIAL EVIDENCE in the record, which is simply some credible evidence in the record to support the AA's determination. Hearsay alone if credible and believable may constitute "substantial evidence". See pg. 35-36 Admin Law Book. Substantial evidence is less than a preponderance of the evidence. It only requires that the AA's determination be supported by some relevant and credible proof that a reasonable person would accept as adequate.
In making its determination, the AA must base its decision exclusively on the hearing record. It cannot consider evidence outside the record (i.e. it cannot visit a disputed location or base its determination on personal conversations conducted after the hearing).
If the only issue raised in an Article 78 is the "substantial evidence" question after the AA conducted a full trial type hearing, then because there is already a full transcript record for judicial review, that Article 78 commenced in the Supreme Court must be transferred to the Appellate Division to decide the substantial evidence question. If the Supreme Court could decide some other issue (SPARE RIBS), statute of limitations, or whether there is MOP jurisdiction over the AA in the Article 78, and that issue could terminate the Article 78, then the Supreme Court must first decide those issues before transferring the Article 78 to the appellate division.

Front 23

Who reviews whether or not an AA determination was “arbitrary and capricious”?

Back 23

The review of whether an AA determination was "arbitrary and capricious" is done by the NY Supreme Court whereas a "substantial evidence" review is done by the appellate division, but in both of those Article 78 proceedings, the issue is whether there is a rational basis to support the AA's determination.

Front 24

In order for a court to overturn an AA's punishment, that punishment must be what?

Back 24

Disproportionate to the offense as to be shocking to one's sense of fairness amounting to an abuse of discretion.

Front 25

What happens and how does it occur when suing the state of NY for money damages occurs?

Back 25

When suing the state of NY for money damages, that action must be commenced in the NY State Court of Claims, which has exclusive subject matter jurisdiction to hear such claims. However, when suing the state of NY for Article 78 relief, the Supreme Court is the proper court. The NY Supreme Court can award money damages in an Article 78 against the state of NY, but it must be INCIDENTAL to the Article 78. This usually arises when a state or municipal agency has a statutory duty to pay money to the Article 78 petitioner, but has withheld it.

Front 26

Do not confuse an Article 78 with a CPLR 3001 declaratory judgment action, which asks the Supreme Court to declare the rights of the parties involved in a controversy. Declaratory judgment actions are also used in federal practice. They are frequently used to do 3 things, explain these.

Back 26

1. to challenge the constitutionality of a statute or regulation
2. to determine the rights and liabilities of the parties in a disputed contract (e.g. a pension plan, an insurance policy, a prenuptial agreement, or a real property contract asking the court to determine whether the buyer breached the contract thereby forfeiting the buyer's deposit in NY).
3. If a federal state, or municipal statute is challenged as unconstitutional, then notice of that lawsuit must be given to either the US attorney, the attorney general of NY, or the municipality's attorney notifying these attorneys of the right to intervene into the declaratory judgment action. The challenger asserting unconstitutionality bears the heavy burden of proving the statute's unconstitutionality beyond a reasonable doubt.