IL Admin Law

Question 1

Contested Case

Answer 1

An adjudicatory proceeding in which the individual rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for a hearing.

Ex. zoning, licensing, workman’s comp…

Question 2

Minimum procedural safeguards in contested cases

Answer 2

1. Right to present evidence.
2. Knowledge of opposing evidence
3. The opportunity to test and rebut evidence (cross); AND
4. the decision must be made solely on evidence produced at the hearing.

Question 3

Rule-making

Answer 3

Each agency statement of general applicability that implements, applies, interprets, or prescribes law of policy.

Includes amendment and repeal. (ILT p.4)

Question 4

Four independent grounds on which a court may review and possibly set aside agency action:

Answer 4

1. Constitutional Review
2. Jurisdictional Review
3. Procedural Review
4. Merits review
   ILT p. 5

Question 5

Scope and Deference: Constitutional Review

Answer 5

1. Substituted (de novo) scope.
2. Court gives NO deference
   ILT p. 6

Question 6

Scope and Deference: Jurisdictional Review

Answer 6

1. Substituted scope
2. Court gives SOME deference
   ILT p.6

Question 7

Scope and Deference: Procedural Review

Answer 7

1. Substituted judgment
2. Court gives NO deference.
   ILT p.6

Question 8

Scope and Deference: Merits Review: Contested Case

Answer 8

Substantial evidence Test.

ILT p. 7

Question 9

Substantial evidence test

Answer 9

Substantial evidence to support a factual finding consists of more than:

1. a mere scintilla, but
2. may be less than a preponderance of evidence.
   ILT p.7

Question 10

Abuse of discretion test

Agency action is arbitrary and capricious.

Answer 10

1. Did agency consider an irrelevant factor?
2. Did agency FAIL to consider a relevant factor?
3. Did agency fail to plausibly explain any apparent inconsistency.
   ILT p.8

Question 11

Agency discretion

Answer 11

If reviewing court finds agency action illegal it sets aside the action but does not decide the issue.
ILT p. 9

Question 12

General Principles Governing Judicial Review

Answer 12

1. Agency Discretion.
2. Lawfulness of agency action judged by ACTUAL chain of reasoning of decisionmaker.
3. Agency must EXPLAIN the reason for its decision.
4. Action is unreasonably delayed.
5. Preservation of issues (issue exhaustion)
6. Appeal of judicial review - appellate courts review the decision in the agency - not the circuit court.

ILT p.9

Question 13

Contested Cases: Ex parte communication

Answer 13

Any written or oral communication that is not on the public record.

IL does not allow ex parte communications after notice of hearing in a contested case.
ILT p.10

Question 14

Bias

Answer 14

1. Only disqualifies if there is prejudice against specific FACTS in the controversy. Preformed opinion on law or policy is acceptable.

Also should recuse when:
1. Decision maker has a personal financial stake in the outcome;
2. Decision maker has been the target of attacks by a party; or
3. Where the decision maker says something publicly that shows s/he has prejudged the facts.
ILT p.10

Question 15

Standard of Proof

Don’t confuse with scope of review

Answer 15

Default is preponderance of evidence. Different standard may be provided by law or agency rule.
ILT p.10

Question 16

“Property” in non-contested procedural due process analysis

Answer 16

Must be created by statute, common law, or agency rule.

ILT p.12

Question 17

“For cause” standards

Answer 17

Require the government to satisfy any mandatory substantive predicate before taking adverse action.
ILT p.12

Question 18

Liberty

Answer 18

Travel, occupation, and family.

ILT p.12

Question 19

When is Process Due?

Utilitarian three-factor balancing test

Answer 19

1. HARM to the private party that would result from erroneous deprivation.
2. GOVERNMENTAL (i.e. general public) interest in using less formal decision making procedures (including lesser administrative costs), AND
3. the UTILITY (in terms of improving accuracy of the decision) of the additional procedure.
   ILT p.12

Question 20

Illinois Rule Making Procedure

Answer 20

1. Timing: agency may not adopt a rule until 45 days after notice is published.
2. Content of new rule
3. Comments
4. Hearing (maybe)
5. Notice to JCAR
6. Filing - Rule must be filed with the Secretary of State and must be made effective within 1 year of the first notice period.
   ILT p.15

Question 21

What must the notice to the public of a new rule require?

Answer 21

1. TEXT of the proposed rule
2. Applicable statutory citations
3. Description of issues involved
4. Descriptions of research reports used in developing the rule; and
5. The time, place, and manner for public comment on the proposed rule.
   ILT p.14

Question 22

When must an agency hold a public (legislative) hearing during rule making?

Answer 22

1. Hearing would facilitate public comment on the proposal; or
2. The agency receives a sufficient number of requests for a hearing.
   ILT p.14

Question 23

Emergency Exception Definition

Answer 23

(police powers) public interest, safety, or welfare.

ILT p.15

Question 24

Emergency Rulemaking

Answer 24

May be filed without notice or hearing, BUT:

1. Emergency rules are valid for no more than 150 days.
2. Subject to narrow exceptions, no emergency rule may be adopted more than once in any 24 month period.
   ILT p.15

Question 25

Valid legislative rules:

Answer 25

Have the force and effect of law - treated like a statute and is therefore binding on the courts. ILT p.15

Question 26

Interpretive Rules:

Answer 26

Treated as agency's advisory views on how to read its organic act. Do not carry the weight of law. ILT p.16

Question 27

Open Meetings Act

Answer 27

Requires public notice of access to meetings of most state and local public bodies if a quorum of the members is present. ILT p.16

Question 28

Ripeness

Answer 28

Even though an agency decision may be fixed, courts may delay judicial review further if they think it will improve the quality of their judicial decisionmaking, WITHOUT UNDUE HARM TO THE COMPLAINING PARTY. ILT p.20

Question 29

Ripeness balancing test

Answer 29

1. Present fitness of the issues for judicial resolution against, 2. Hardship to the parties of delaying a review. ILT p.20

Question 30

Commencing action in circuit court

Answer 30

An action to review a final administrative decision is commenced by filing a complaint and issuing a summons within 35 days from the date that a copy of the decision was served on a party affected by it. ILT p.17

Question 31

Filing a complaint

Answer 31

35-day requirement for filing a complaint is a jurisdictional requirement, not a statute of limitation, and cannot be waived. ILT p.18

Question 32

Issuing a summons

Answer 32

The 35 day period for issuing a summons is NOT jurisdictional and thus may be relaxed in some circumstances. ILT p.18

Question 33

Service of Summons: Good faith exception

Answer 33

35 day requirement may be relaxed when the litigant makes a good faith effort to issue the summons within the statutory period. Mere assumption that the clerk will extend the period is not enough. The litigant must take some affirmative step. ILT p.19

Question 34

Contested cases : Exhaustion of administrative remedies

Answer 34

Private parties must give the agency the fullest possible opportunity to correct its own mistake. ILT p.19

Question 35

Exhaustion of administrative remedies : Rule making

Answer 35

Exhaustion is NOT required if: 1. The agency could not provide an adequate remedy. 2. The only issue presented concern matters of law. 3. If requiring exhaustion might cause irreparable injury. ILT p.20