Oklahoma Administrative Law Bar Exam - Bar Exam Outlines

Oklahoma Administrative Law

• Overview

  • Substantive Powers

    • Enabling statute specified the powers of the agency.

    • Agency can only exercise the substantive powers granted to it by the enabling statute

• Procedural Principles

  • Oklahoma Administrative Procedures Act (OAPA) provides uniform procedures for administrative agencies when the enabling statute is silent on this

• MAJOR FOCUS OF BAR EXAM HERE IS THE RULES OF PROCEDURE ON RULEMAKING & ADJUDICATION

• Relationship Btwn Legislature & Agency

  • Source of Power: Delegation

    • Legislature delegates power it would otherwise have to the agency

    • An agency then has

      • "quasi-legislative" power to adopt rules and regulations

      • Executive power to enforce rules & regulations

      • "quasi-judicial" power to apply rules & regulations in individual cases

• Delegation Limits

  • The enabling statute must avoid unfettered agency discretion in exercise of its powers

  • Standard cannot be too vague, but courts are liberal in construing the statute as long as it is not "standard-less"

• OAPA Overview

  • Structure

    • Article I establishes procedures agencies must follow to adopt agency rules

      • It controls the "quasi-legislative" functions of the agency

    • Article II: establishes the notice & hearing requirements for individual adjudications before the agencies

      • It controls the "quasi-judicial" functions of the agency

  • Coverage

    • OAPA applies to AGENCIES, defined

      • Any "constitutionally or statutorily created (look for if it says "State Board")

        • State board,

        • Bureau

        • Commission

        • Office

        • Authority

        • Public Trust in which State is Beneficiary

        • Interstate commission

  • Exclusions

    • "Agency" does not include

      • Legislature or any branch, committee or officer thereof

      • The courts or any arm there of, ie. the OBA & its committees

      • Municipalities

      • Counties

      • School Districts

      • Other agencies of local government

  • Exemptions

    • Applies even where is an agency under OAPA they are exempt from certain provisions:

      • OK Corp Commission (OCC) is exempt from the notice of proposed rulemaking provisions of Art I

      • OCC, Commission for Human Services, OK Tax Commission are not required to comply with Art II provisions for individual proceedings

• Article I

  • Rule Making Process

    • "RULE" means any agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of the agency

    • Proposed Rule

      • Agency required to maintain a rulemaking record for each rule

    • Notice to the Public of Intended Rulemaking

      • Agency must provide notice of proposed rule to public

      • Notice published in Oklahoma Register

      • Must:

        • Summarize proposed rule

        • Announce minimum 30 day comment period

        • Announce public hearing scheduled at least 30 days after publication OR announce how people can demand hearing

        • Say how people can get copy of proposed rule and the Rule Impact Statement

        • Request comments from possible impacted businesses

• Public Comment & Hearing

  • Public Comment must be allowed for anyone for at least 30 days post notice

  • Public Hearing, in not announced, may be demanded by:

    • 10 or more people

    • A political subdivision

    • Agency

    • Or Association w/ 25 or more members

  • If hearing properly demanded agency MUST schedule oral hearing on proposed rule & give at least 30 days notice

• Adopted Rule

  • After agency review public comments and such it adopts the rule

  • NOT LAW YET

  • Need still be reviewed by governor or legislature

    • Review of Rule by Governor

      • W/in 10 days after agency adopt rule, must send gov. a copy & agency Rule Report

      • Governor has 45 days to approve or disapprove in writing

      • If fail approve in 45 days, deemed disapproved

      • If disapproved, rule can be valid till approved by joint resolution by legislature

    • Review by Legislature

      • W/in 10 days of agency adoption, must send rule & rule report to legislature

      • Approve:

        • Active: legislature has 30 days to review and approve in whole or part by vote

        • Passive: can inactively approve by remaining in session for 30 days after submission w/o voting on it

          • Deemed approved

        • Fees: Any rule that establishes or increases fees must be approved by legislature by joint resolution. Deemed disapproved if fail approve rule on or before last day of legislative session

      • Disapproval

        • Legislature may disapprove rule w/in the 30 legislative day review period

        • If disapprove rule, by concurrent resolution the rule invalid regardless of any action by governor (effect is a veto of gov)

• Final Rule

  • Considered "finally adopted" upon approval both by Governor and legislature, or in some cases upon approval by legislature

• Promulgated Rule

  • W/in 30 days after rule finally adopted, agency files rule w/ Office of Secretary of State responsible for printing Oklahoma Register and OK Administrative Code

  • "Finally Adopted" rule considered "promulgated" upon publication in OK Register

  • If conflict between final adopted & published, then Published Rule controls

• Effective Date of Promulgated Rule

  • Finally adopted rule is effective 10 days after publication in OK Register (unless later date required or specified)

• Emergency Rulemaking

  • Promulgation of Emergency Rules

    • Agency submit to governor "substantial evidence" that rule is necessary as an emergency measure to:

      • Protect public health, safety, welfare;

      • Avoid serious prejudice to public interest; or

      • Similar reasons

    • Substantial Evidence= credible evidence of sufficient quality and probative value to enable person of reasonable caution to support a conclusion

  • Departure from Standard Rulemaking Process

    • Notification to public is OPTIONAL

    • No demand allowed

    • Must submit emergency rule & impact statement to gov. and leg. w/in 10 days after rule adopted

      • Gov must approve or disapprove w/in 45 days & find agency has met the "substantial evidence" requirement

      • NO ACTION NECESSARY BY LEGISLATURE REQUIRED

    • Emergency Rule considered "promulgated" upon approval of gov. and is effective IMMEDIATELY upon gov approval

  • Duration of Emergency Rule

    • Effective from date of gov approval through July 14 following the next regular legislative session unless superseded by another rule or disapproved by legislature.

• Challenging Rulemaking

  • Substantive Challenge: Validity of rule can be challenged on ground that it is beyond the authority delegated to the agency

  • Procedural Challenge: validity of rule can be challenged on ground that agency did not follow the Article I rulemaking procedure

• Judicial Review: Validity & Applicability of Rule

  • Timing

    • OAPA includes rule of "non-exhaustion" of administrative remedies

    • OAPA expressly provides that a declaratory judgment concerning validity or applicability of a rule may be rendered whether or not the challenging party has requested the agency to pass on the validity or applicability of the rule

      • Provision ONLY APPLIES TO AGENCY RULES NOT AGENCY ORDERS (judicial stuff)

• Declaratory Judgment Action

  • Type of Action:

    • Validity or Applicability of a rule may be determined in an action for DECLARATORY JUDGMENT

  • Venue:

    • District Court of County of residence of person seeking relief OR in County where rule would be applied

  • Parties & Burdens:

    • Agency MUST be a party to the action & agency has burden to show rule valid

      • Ie. that agency has authority to issue promulgate rule, its consistent w/ article I, etc.)

  • Standard of Review:

    • OAPA provides standards of review for judicial review of agency adjudications under Art. II but not for rulemaking under Art. I

    • Challenge on agency rule presents question of law that reviewing court decides independently using non-deferential de novo standard

• Impact of Non-Compliance w/ Art. I Procedure

  • General penalty for failure to promulgate rule in accordance w/ Art. I is:

    • Rule is not valid or effective against any person or party, nor may such rule be invoked by agency for any purpose

• Alternative to Declaratory Relief

  • Can wait for individual enforcement action & raise these issues w/in context of that action

• Article II: Individual Proceedings & Exercise of Agency's Quasi-Judicial Power

  • Overview:

    • Right to Individual Proceeding

      • Will depend on if Enabling statute of agency requires an individual proceeding before it can issue an order or if no such authorization, by procedural due process

    • Nature of Proceeding

      • If enabling statute creates a right to an individual proceeding, but doesn’t specify the procedure, then Article II of OAPA gives the proper procedure.

• OAPA Art II Guidelines for Individual Proceedings

  • Notice & Hearing

    • Notice: All parties must be given notice including;

      • Time, place & nature of hearing

      • Legal authority & jurisdiction under which hearing to be held

      • Reference to the statute & rules involved

      • Short & plain statement of matters asserted or proposed adverse action

    • Procedure: All parties must be given chance to:

      • Respond & present evidence

      • Argue

      • Cross-examine on all issues

      • Findings of fact must be based exclusively on the evidence received & matters officially noticed

      • Right to have counsel

    • Presiding Official: May be conducted by:

      • Board or commission

      • Hearing officer appointed by...