Formal Adjudications Chapter 8

In General Lawyers and legal assistants play an important role in the adjudication aspect of administrative procedure. APA provides that all proceedings that result in an order are adjudications. Order is defined to include all actions, including licensing, tha tare not rulemaking.

Notice Adjudications are the administrative equivalent of court trials. Adversarial parties may present evidence, may examine and cross-examine witnesses, and may make arguments to a presiding agency official. Parties must be “timely informed” of the time, place and nature of the hearing.

The Test The test for determining whether a party has been given adequate notice of the nature of the case or issues to be considered is whether the information provided permitted the party to adequately prepare his or her case.

Hearing The agency may try new issues as long as it is reasonable to do so. If a new issue is so unrelated to the issues described in the notice that a party could not have been prepared to address the, a continuance must be granted. **Surprise by an agency violates due process.

Technical Defects Notices will not be invalidated because of technical defects. (misspelled name) **An incorrect hearing date is not technical and would violate due process.

Parties and Participation Named parties must participate Parties in interest (parties that could be effected by the outcome) may seek intervention: if a person is not a named party in an administrative proceeding or lawsuit but is a party in interest, he or she may become part of the proceeding.

Parties of Interest/Standing Standing: a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action. **Those who suffer economic injury or loss pursuant to an agency action, even if that action is directed against another, qualify to intervene. **Consumer advocacy groups occasionally intervene on behalf of all consumers.

Right to Participate cont. The right to participate has been extended beyond obvious parties. Competitors and other parties who may suffer some form of economic harm are allowed to participate. Existence of some other legitimate interest General public concern exists

Other Methods of Participation Witness: someone who is interested in the case, but not so far as to intervene Person/Group can file an Amicus Curiae brief: Permit a person or group to express a perspective or opinion without becoming a party.

Discovery Pretrial process whereby the parties exchange information about the case. Prevents, trial by surprise Encourages settlement, as the parties learn the facts of the case and each others’ legal theories early in the game. Parties can make a realistic evaluation of their cases, and, therefore be in better positions to engage in settlement negotiations **Parties may seek protective orders whenever discovery is unduly burdensome or encroaches on a privilege, such as attorney-client or work product doctrines.

6 Primary Tools of Discovery 1. Interrogatories 2. Depositions 3. Requests for production of documents 4. Requests for admissions 5. Bills of particulars 6. Subpoenas

Prehearing Conference The prehearing conference is the equivalent of a judicial pretrial conference. The parties may discuss and identify the issues, discuss stipulations, review exhibits and other evidence, provide a list of witnesses expected to be called, and consider settlement. Presiding official will review the format and procedure of the hearing with the attorneys. Presiding official decides when the prehearing conference will take place.

Prehearing Settlement and Alternative Dispute Resolution APA requires agencies to entertain settlement offers prior to the commencement of adjudicatory hearings if “time, the nature of proceedings, and the public interest permit.” APA also encourages agencies to use alternative dispute resolution (ADR) to dispose of cases. ADR is generally regarded as less expensive and less time-consuming than formal adjudication or litigation. Mediation, arbitration, and conciliations are commonly used forms of ADR.

The Hearing The APA only mandates trial-type procedures whenever another statute specifically requires them. Congressional mandates for a hearing is not likely to be construes as requiring a trial-type hearing. Congress must clearly state that the right to a trial type hearing is granted. If a full trial-type hearing is not required, an agency may use any other form of hearing within the limits of due process.

Evidence Admissibility In state and federal courts, hearsay is not admissible. Hearsay: A statement made outside of court that is offered by a declarant to prove the truth about a matter asserted. **A presiding officer of an administrative hearing may admit hearsay or other evidence that would be excluded from a judicial trial unless the agency has a rule of evidence that requires otherwise. Administrative law judges usually admit nearly all evidence offered, often with the qualification of “what it’s worth.” They tend to look at its weight, reliability and value.

Prejudicial Error Rule and Legal Residuum Rule An error is prejudicial if it had an impact on the outcome of the case. Harmless errors are not reversible. Legal doctrine stating that although agency decisions may be based in large part on evidence that would be in admissible in court, an agency’s decision may not be based entirely on such evidence; a minimal “residuum” of competent evidence must support he agency’s determination.

Privileged and Illegal Evidence Well-established privileges may be invoked in administrative proceedings. Husband-wife Parent-Child Physician-Patient Attorney-Client **The person who can invoke the privilege is the person who the privilege is intended to protect.

Official Notice Parties may request that the court takes judicial notice of the facts. Judicial Notice: method of avoiding the need to prove the well known or obvious. Official Notice: A presiding officer’s declaration that a fact is true without any proof of that fact being offered. **Because officers of agencies are considered experts in their fields, official notice may be taken of any fact that is obvious not only to the average person but also to experts in the field being dealt with.

Burdens Burden of Production: Concerns who in a proceeding has the duty to produce evidence or raise an issue Burden of Persuasion: Concerns who in a proceeding has the duty of persuading the trier of fact that is position is correct. In most cases, the person who carries the burden of production also carries the burden of persuasion. In administrative law, the moving party has the burden of proof.

Standards Most Demanding Standard Beyond a Reasonable Doubt A doubt that causes a reasonable and prudent person to question the truth of an allegation is reasonable. Used in criminal cases, rarely in administrative cases. More Demanding StandardClear and Convincing Evidence Less demanding than the beyond-a-reasonable-doubt standard, but more than the preponderance standard. Used in administrative cases only when an agency’s action encroaches on a legally protected right. Least Demanding StandardPreponderance of the Evidence More likely true than not; any probability greater than 50%. Standard used in most administrative cases.

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