DRAFT AGENDA (11.6.2006)
Draft Agenda for Model State
Administrative Procedure Act Drafting Committee (NCCUSL) meeting,
Prepared by Professor Gregory
L. Ogden, Reporter (2006-2007) with the guidance of Commissioner Fran Pavetti,
Chair of the MSAPA Drafting Committee.
I. KEY ISSUES FOR CONFERENCE ADVICE AND GUIDANCE
1. Adoption of
interpretive and policy statements using rulemaking procedure; Publication of
interpretive and policy statements.
Should the MSAPA require interpretive and policy
statements to be adopted as rules; and if not, should there be a requirements
that they be published?
2. Codification of weight
to be given to interpretive rules and policy statements on judicial review.
If interpretive and policy statements are not rules,
but are required to be published, should the MSAPA address the weight to be
given interpretive and policy statements on judicial review?
3. Mandatory adoption of
agency precedent decisions as rules, or publication and indexing of decisions
without adoption as rules.
Should the MSAPA require prior agency decisions of
first impression on legal issues to be adopted as rules; or, if not required to
be adopted as rules, should there be a requirement that such decisions be
indexed and published?
4. Cost benefit analysis
and rulemaking
Should cost-benefit
analysis be required for all rules; or be limited to certain situations; and if
limited, under what criteria?
5. Administrative rules
editor or publisher
Should the act
provide for an administrative rules editor, with the power to edit, for the
publication, compilation, indexing, and public inspection of the rules or
should the act provide for a publisher with limited power to edit?
6. Legislative veto power
for agency rules
Should the Act
contain a legislative veto power for agency rules?
7. Petition for rulemaking
requirement for persons (non parties to agency rulemaking proceedings) seeking
judicial review of rules adopted in proceeding.
Should the Act
provide that, before a person who was not a party in an agency rulemaking
proceeding seeks judicial review of a rule produced in that proceeding, that
person must first petition the agency for rulemaking on the subject for which
she seeks judicial review?
II.
Scope and Organization of the MSAPA.
Q1. Should the MSAPA be organized with core
provisions, and optional provisions, or should it retain the current
organization, which addresses all of the major topics covered in typical state
administrative procedure acts?
Q2. What is the purpose of, and benefits
from, a core provision and optional provisions approach to the MSAPA revision?
Q3. What is the purpose of, and benefits
from, the current organizational approach to the MSAPA revision?
Q4. What drawbacks are there to each
approach?
Q5. Does the approach of core provisions,
and optional provisions, fit today’s legislative environment better, in which
most states have an existing state administrative procedure act?
III. Agenda items based upon key issues
for the annual meeting, the transcript of the reading of the draft act, Ken
Hansen’s comments, and the summary of written comments from Commissioners about
the MSAPA July 2006 draft act at the annual meeting, July 2006.
ARTICLE 1 [General Provisions]
1. §
102(3)(B) Definition
of Agency Action
MSAPA
Draft Reference [substantive]
[Page 4, Line 19]
Q1. Should the term failure to issue an order
or rule be deleted from the definition of agency action?
[Comment from Commissioner McKay that this
should be taken out of the definition.] [Written Comment] [Transcript, page 6
last two lines to page 7, lines 1 through 10] (substance of transcript
comments: it is a mistake to consider agency failure to issue a rule as agency
action, for which the agency can be taken to court. The definition is too open
ended, agencies have limited resources, and agencies can not have a rule for
everything, and it is better to use adjudication for incremental rulemaking
anyway.)
2. Section
102(5) Disputed Case
A. Key Issue 1. § 102(5) Disputed Case and
§ 401.When Article Applies. Disputed Cases.
These two sections
work together to define the right to a hearing. Section 102(5) defines a
disputed case, and Section 401 makes the procedure of Article 4 adjudications
applicable to disputed cases.
A disputed case is
an adjudication in which the opportunity for an evidentiary hearing is required
by law. Law is defined as federal or state constitution or statute, judicial
decision, common law, rule of court, executive order, or rule or order of an
agency.
This definition is
less inclusive than the 1981 MSAPA, which presumptively created a right to a
hearing whenever a person petitioned for it. This definition is broader than
the 1961 MSAPA definition of “contested case,” which was a proceeding in which
the legal rights, duties, or privileges of a party were required by law to be
determined by an agency after an opportunity for hearing.
In the 1961 MSAPA the term law was not defined, and the meaning of right, duty
and privilege was the subject of extensive litigation. Courts in states that
adopted the 1961 MSAPA created a large body of case law that identified those
rights, duties or privileges that granted parties contested case status.
The present
definition seeks to clarify those situations in which there is a right to a
hearing under the MSAPA. Instead of a judicial search for a right, duty or
privilege, the opportunity for a hearing must be created by law (broadly
defined) or constitution. Unlike the 1981 MSAPA, this definition looks to a
source outside the MSAPA to define when a hearing is required. This definition
is consistent with the line of cases that identify constitutionally protected interests
that occurred as part of the expansion of procedural due process beginning in
the 1970’s.
B. Key Issue 2.
Key Issue 2. Scope of
evidentiary hearing required by law, mandated by statute, constitution, or
other law, or determined by the broader approach of the 1981 MSAPA.
Should evidentiary
hearings be required only when mandated by statute, constitution or other law,
or should the conference adopt the broader approach of the 1981 MSAPA that
requires an evidentiary hearing in almost all instances where an order is to be
issued by the agency?
C. §
102(5) Definition
of Disputed Case
MSAPA
Draft Reference [style] [Page 5, Lines 2, and 3]
Q1. Should the language “disputed case” be
used in place of the term “contested case” for the definition of an
adjudicatory evidentiary hearing that is required by law? [Discussion] ( the disputed case term is designed to indicate that
the definition and scope of MSAPA
hearings is different from the contested case term which is used in the 1981
MSAPA. However, the contested case term is familiar to ALJ’s and others in
states that follow the 1981 MSAPA.)
3. Section 102(10)
(Guidance Documents)
MSAPA Draft Reference [style] [Page 5, Lines 14-17]
Q1.
This definition is broad enough to include agency web pages. Is that the
committee's intent?
[Written Comments by Ken Hansen]
4. §
102(20) Definition
of Person
MSAPA
Draft Reference [substantive] [Page 6, Line 18 and 19]
Q1. Should the bracketed language referring
to public corporations and government entities and agencies be included in the
definition or excluded?
[Comments of Commissioner Burton] [Transcript,
page 7 lines 1 to 5 of last 8, and page 8, lines 1 to 5] (substance of
transcript comments: Why was the bracketed language included? You should
include that language without brackets, and without the last sentence of the
definition.).
5. Section 102(20)
(Person), 102(23) (Publisher)
MSAPA Draft Reference [style]
[Page 6, Lines 21-22; and Page 7, Lines 8-12]
Q1.
Should the note in each definition be moved to a comment ?
[Written Comments by Ken Hansen]
The
"Note" (two occurrences) seems out of place within the text of the
act.
Rather,
it seems to belong in a comment.
6. Section 102(26)
(Rule)
MSAPA Draft Reference [substantive]
[Page 7, Lines 19-20; See also Page
21, Lines 3-4; and Page 32, Line 13]
Q1.
Should the definition of rule include the language “suspension of an existing
rule”? "The term includes the amendment, repeal, or suspension of an existing rule.".
[Written
Comments by Ken Hansen]
Based
on this language, the committee has assumed that an agency as authority to
suspend a rule. I do not believe that is clear, nor do I believe that is
assumed in the states. What is the process for suspending a rule? The only
entity explicitly authorized to suspend a rule under the draft is the
legislative/independent committee in Section 705,
page
87, line 3. Does the committee really intend to call action by a legislative
committee a "rule"?
7. §
102(28)(B) Definition
of Signature
MSAPA
Draft Reference [substantive]
[page 8, lines 16 to 19]
Q1. Is there an error in the definition of
signature?
[Written Comment from Commissioner Pat Fry: There
is an error in the definition of “signature.” It should be “logically associate
with the record.”]
8. §
102(30) Definition
of Written
MSAPA Draft Reference [substantive] [page 9, line 1]
Q1. Is the definition of the term written
necessary?
[Transcript Page 8, lines 10 to 24] [Comments
from Commissioner Burton: is the definition of the term “written” necessary, or
is it irrelevant when the term record is also defined and used in the act?
Response from Reporter Gedid: This is a standard definition, taken from UETA
Act, and is designed to indicate that written includes hard copy or electronic
medium.]
ARTICLE 2 [PUBLIC ACCESS
TO AGENCY LAW AND POLICY]
1. Section 201 Comment 2nd
paragraph
MSAPA
Draft Reference [style] [Page 14,
lines 20 to 22]
Q1.
Does the wording of the first sentence in the second paragraph of the comment
need to be reworded for accuracy?
[Written
Comments by Ken Hansen]
Page 3: "The emergence of the Internet,
which did not exist at the time of the last revision of the Act,...." This phrase is incorrect and needs to be
reworded. The Internet began in 1969 under the name ARPANET. The name World
Wide Web was coined in October 1990.
ARTICLE 3 [RULEMAKING;
ADOPTION AND EFFECTIVENESS OF RULES]
MSAPA Draft References
1. Section 301(c), [style], [Page 19, lines
11,12]
2. Section 302(a), [style],[Page 20, line 10]
3. Section 303(a),(b), [style],[Page 21, lines 26
and 31]
4. Section 304(a),(b), [style],[Page 22, lines 24,
25, Page 23, line 7]
5. Section 306 (a)
through (e), [style],[Page
25, lines 9, 13, 15, 18, and 20]
and
6. Section 308(a) [style], [Page 27, line 4]
[style]
Q1.
Does the use of different terminology for proposed rules, and notice of
proposed rules create confusion?
[Written
Comments by Ken Hansen]
Throughout:
"notice of proposed rule adoption" or "proposed rule" or
"notice of the proposed adoption of
a rule" The committee has used different terms to refer to the same thing.
This creates confusion. I suggest that we use "notice of proposed
rule" and "proposed rule" throughout.
ARTICLE 4 [ADJUDICATION]
1. §
402 (b) Presiding Officer
MSAPA Draft Reference [style]
[Page 38, lines 8 to 11]
Q1. Should the term agency head be bracketed
as well as the term one or more members of an agency head so that it is clear that
agency head can be an individual and one or more members of an agency head?
[Transcript,
Page 11, lines 1 to 7] , [Comments from Commissioner Davies]
2. §
402 (e) Disqualification of Presiding Officer
MSAPA
Draft Reference [substance] [Page 38, lines 19,20]
Q1. Should the presiding officer have an affirmative
duty to disclose potential conflicts including inter alia dealings by officer
and his family with the agency?
Q2. Should the presiding office have a duty
to disclose financial interests or similar matters so that the parties will
know that they might have a ground for disqualification?
[Transcript, Page 12, line 4 to 10], [Comments of Commissioner De Giusti]
3. §
402 (f) Disqualification of Presiding Officer
MSAPA
Draft Reference [substantive] [Page
38, lines 21 to 23, and page 39, lines 1 to 3]
Q1. Is it sufficiently clear enough in the
text that a written request for disqualification with the grounds must be made
before the taking of evidence, and upon any later discovery of information
containing disqualification grounds, the written request for disqualification
must be made promptly after such discovery?
[Written comments: lengthy note from first
reading.]
4. §
402 (g) Disqualification of Presiding Officer
MSAPA
Draft Reference [substantive] [Page 39, lines 4 to 9]
Q1. Should the challenged presiding officer decide
whether or not to grant the petition for disqualification, or should that
petition be decided by a chief ALJ, or other presiding judge, whenever
possible?
[Transcript, Page 10, lines 18 to 47], [Comments of Commissioner Berg]
[Basic
Point: multiple judge offices, or central panel offices often have a
chief judge, who can decide these matters instead of the sitting judge who is
being challenged ]
5. §
402 (h)(1) Disqualification of Presiding Officer
MSAPA Draft Reference [substantive]
[Page 39, lines 6 to 9]
Q1. Should the governor appoint a substitute
presiding officer if the original presiding office is an elected official, or
should there be a substitute appointed presiding officer to replace the elected
official?
[Transcript,
Page 11, lines 32 to end], [Comments
of Commissioner Winkelman]
[Basic Point: Appointment
of a substitute elected official by the governor is a complex and time
consuming process of the agency head if the agency head is a member of the
Governor’s cabinet. This appointment procedure is awkward for agency heads that
are department heads of executive agencies.]
6. §
402 Presiding Officer (hearing officer leaves after hearing but before
decision)
MSAPA
Draft Reference [substantive] [Pages
38, and 39]
Q1. Should a provision be added that specifically
addresses the problem that can be created when one hearing officer hears the
case, and then leaves or dies or resigns or retires and another hearing officer
is assigned to make the decision?
Q2. Should there be a right to a new hearing before
the second hearing officer, or is it enough that the second hearing officer can
reach a decision based on the record of the hearing before the first hearing
officer?
[Transcript, Page 11, lines 12 to 29], [Comments of Commissioner McKay]
[Basis Point: when a hearing officer leaves
and another takes their place before the decision is made, do the parties have
a right to a new hearing, or to present evidence to the new hearing officer, or
can the new HO decide the case based on the existing record.]
7. § 403(c). Disputed Case Procedure
(governing procedure)
MSAPA Draft Reference [substantive] [Page
40, lines 7, 8]
Q1. Should the term
“governing procedure” be defined specifically in the act?
[Transcript Page 16] [Comment of
Commissioner Burton]
8. § 403(d) (1). Disputed Case Procedure
(exclusion of evidence)
MSAPA Draft
Reference [substantive] [Page
40, lines 9 to 17]
Q1. Admissibility
of Evidence. The first sentence
provides a standard for admissibility of evidence without the need for
following the rules of evidence. This serves as a protection for unrepresented
parties. The standard is further amplified in the comment, which provides a
definition of the phrase “unduly repetitious.”
Q2. Should
the term “must” be replaced with the term “may” so that the presiding officer
has discretion as to whether to exclude evidence, and the abuse of discretion
standard of judicial review will be applicable to challenges to a presiding
officer’s decision to exclude or not exclude evidence?
[Transcript, Page 14, lines 19 to end], [Comments of Commissioners Nelson, and Thurbon ]
Q3. Should the term
“must exclude evidence” be replaced by the language “shall have discretion to
exclude evidence so that the presiding office has flexibility to admit useful
evidence?
[Transcript, Page 14, lines 19 to end], [Comments of Commissioners Nelson, and Thurbon ]
Q4. Should the
bracketed language with the legal residuum rule be deleted?
[Transcript, Page 16, lines 3 to 11], [Comments of Commissioner Bilken]
Q5. Should the
language “statutory grounds” be changed to reflect the statutory codification
of evidence rules in many states?
[Transcript, Page 17, lines 5 to 11], [Comments of Commissioner Concannon]
Q6. Does the term
“objectionable” mean the same thing as the standards in the first sentence (e.g.,
immaterial, irrelevant, unduly repetitious) or does it mean something greater
or lesser?
[Transcript, Page 17, lines 15 to 22], [Comments of Commissioner Wilborn]
Q7. Should the
language of subsection (d)(1) be rewritten to clarify the difference between
mandatory exclusion and permissive exclusion of evidence?
[Transcript, Page 17, lines 29 to 40], [Comments of Commissioner Berg]
9. § 403(d) (2). Disputed Case Procedure (objections
to evidence)
MSAPA Draft
reference [substantive] [Page 40, line 18]
Q1. Timing of objection. Objection to the
admissibility of evidence may be made up to conclusion of hearing. Should the
objection be required when the evidence is offered?
[Several comments from Commissioners that
objections should be made when evidence is offered]
Q2. Should the time
to object to evidence be before the conclusion of the hearing, or at the time
the evidence is offered?
[Transcript, Page 15, lines 32 to 39], [Comments of Commissioner Thurbon]
10. § 403(d) (5). Disputed Case Procedure
(official notice)
MSAPA Draft
Reference [substantive] [Page 41, lines 7 to 14]
Q1. Should
it read “official notice” instead of “judicial notice” and “officially” not “judicially”
wherever it appears? Also, the word
“record” should not be confused with “hearing record” throughout the act.
Q2. Should the last
sentence of the section giving the parties the opportunity to contest
judicially noticed facts before the decision is announced ( including the
unless clause) be deleted?
[Written Comments]
11. § 403(e). Disputed Case Procedure (filing
offers of settlements)
MSAPA Draft
Reference [style] [Page 41, lines 17 to 22]
Q1. Should
the section use the term “settlement agreements” instead of “offers of
settlement”?
[Transcript, Page 18, last twelve lines], [Comments of Commissioner DeGiusti]
Q2. Should the term
“original” (subsection (e), line 6) be used in this setting with electronic
records? [Comment: See UETA. The concept of “original” makes no sense in the electronic
context. Is there any reason to require “originals”? If so, a cross reference
to UETA and E-Sign (15 U.S.C. Section 7004), at least in the comments, should
be included.]
[Written comments]
12. § 403(g). Disputed Case Procedure
(electronic hearings (telephonic)
MSAPA Draft Reference
[substantive] [Page 42, lines 6 through 9]
Q1. All or part of a hearing may be conducted
electronically, including by telephone. Is this too broad?
[Several comments from Commissioners that
holding of telephonic hearings should require consent of all parties]
13. § 403(k). Disputed Case Procedure (written
decision)
MSAPA Draft
reference [substantive] [Page 42, lines 21, 22]
Q1. Does the E-Sign
Act, 15 U.S.C. Section 7004 require you to permit (not require) electronic
orders?
[Written Comment: Commissioner
Jack Burton is correct.]
Q2. Should the
language “the decision in a disputed case must be in writing” be changed to “in
a record” to reflect computer technology, the use of electronic orders by
federal judges, and not limit the agencies to pen and paper technology?
[Transcript, Page 16], [Comments of Commissioner Burton]
Q3. Should the
language of this section be changed to permit decisions to be issued and
maintained in electronic form?
[Written comment]
14. § 403(m). Disputed Case Procedure (agency disputed
case rules)
MSAPA Draft
Reference [substantive] [Page 43, lines 3 to 5]
Q1. Should the
language of this section be changed to delete “equivalent to or” so that the
text reads “may include provisions more protective of the rights of persons?
[Transcript, Page 18], [Comments of Commissioner DeLiberato]
15. § 409(a). Ex Parte Communications
MSAPA Draft
Reference [substantive] [Page 51, Lines 20 thorugh 25]
A. Key Issue 1. Post
hearing ex parte communication between agency decision makers and agency staff,
disclosure to parties, and parties opportunity to respond .
With respect to post hearing ex parte communications
between the agency decision maker and agency staff, what if any disclosure of
the ex parte communication should be required to the parties? Also, what if any
opportunity should be allowed for a party to respond to the disclosed
communication?
B. Key Issue 2. §
409(b). Ex Parte Communications rule: application to agency heads that
communicate with agency staff about technical or scientific matters.
MSAPA Draft Reference [substantive] [Page 51
line 26 to page 52, line 9]
Q1. The presiding officer may not receive
communications from any person on an issue in the case unless all parties
participate. However, if the presiding officer is the agency head, he or she
may communicate with agency staff for an explanation of the technical or
scientific basis of, or technical or scientific terms in, the evidence, if the
term is not a central, contested issue in the case and if the agency staff
member meets the criteria in 409(1) (A) and (B). Also, the staff advice must be
made part of the record, and parties given an opportunity to respond. Various
remedies are given if a violation of Section 409 occurs.
C. Comments on the draft language of Section 409(a)
Ex Parte Communications
MSAPA Draft
Reference [substantive] [Page 51, lines 21 to 25]
Q1. Should
the language “while a disputed case is pending” be replaced by a clearer and more definite
measuring standard for this period of time? Can the term “pending” lead to
differences of opinion?
Q2. Should the term
“person” in subsection (a) have the same meaning ( that is, include government
agencies within the definition) as the definition of terms in Section 102(20)
in a state that includes government agencies within the scope of the term
“person”?
Q3. Should this definition
of persons in Section 409 (a) include the lawyers in the attorney general’s
office who advise administrative agencies, and might both advise the
prosecuting agency, and the central panel agency adjudicating the matter? Should person be limited to individuals,
natural human beings, and exclude legal entities?
Q4. Should the ex
parte communications rules be based on the ex parte contacts ethics rules that
are applicable to judges in the court systems of states?
[Written Comments from
commissioners]
15. § 409(b). Ex Parte Communications
MSAPA Draft Reference [style] [Page 51, Lines 20 to 25; Page
53, line 11 to 13]
Q1. Is the term “ministerial” a commonly
clear term to apply?
[Written comments received from commissioners
and faxed to Reporter by Commissioner Pavotti]
16. § 409(c), (d)(2). Ex Parte
Communications
MSAPA Draft
Reference [style] [Page 52, lines 5 to 9, lines 15 to 17]
Q1. Should
the term “oral” be used instead of the term “verbal”?
Q2. Should the term
“verbal” be replaced with the language “oral or in a record that is not
written”? [Comment from Commissioner Jack Burton].
Q3. [(c) only)]
Should technical or scientific information from agency staff that is
communicated to agency heads be introduced in the record through ex parte
advice, or should this be presented only by testimony of witnesses’ introduced
into the record of the proceeding?
Q4. [(c) only)]
Should the language “from an employee or representative of an agency” be added
after the word “advice” in the first sentences of sub section (c)?
Q5. Should the term
“advice” in subsection (c) and the term communication in subsection (b) be
harmonized? Do these two terms mean the same thing? [Page 51, lines 26 to 29]
Q6. Should there be
an exception in Section 409 (b) for legal advice given to the presiding officer
from a person authorized by law to give that advice (such as legal counsel to
the presiding officer)? [Page 51, lines 26 to 29]
17. § 409(d)(1)(2). Ex Parte Communications
(scope of communication put on the record)
MSAPA Draft
Reference [substantive ] [Page 52, lines 10 to 17]
Q1. Should all
communications be included in the record?
[Written Comment: Do
not confine to written communications. See Section 409(e)(1) (change sheet).
Here I disagree with Jack Burton. If the advice is in the record, it should be
part of the record of the proceedings (Commissioner Pat Fry).]
18. § 409(d)(2). Ex Parte Communications (memorandum
of verbal communications
MSAPA Draft Reference
[Style] [Page 52, lines 15 to 17]
Q1. Should
subsection (d)(2) include the added language “and make part of the record”
after the term “prepare” in (d)(2)?
[Written comment]
19. § 410(d)(2). Intervention
MSAPA Draft
Reference [substantive] [Page
53, lines 28 to 31, Page 54 lines 1 to 10]
Q1. Should the
standards for intervention be the same as for standing under Section 506?
ARTICLE 5 [JUDICIAL
REVIEW]
1. § 506. Standing
MSAPA Draft Reference [substantive] [Page 69, lines 10 to 13]
Q1. Standing. This section adopts a general
description of standing. The “person aggrieved or otherwise affected” language
has become a term of art around which courts have built a considerable body of
case law. The approach of this section leaves the courts free to continue
development of this concept. Is the term “otherwise affected” too broad? Should
the standard be limited to “aggrievement?”
Q2.Should standing
in Section 508(1) be limited to persons upon whom standing is conferred by
statute, or should it include common law standing?
Q3. Should the term
“otherwise” be deleted from the language of subsection (2)?
Q4. Should the
terms “otherwise aggrieved” be deleted from the language of subsection (2)?
Q5. Should the
standing law in section 410 be similar to the standing law governing courts in
the state?
Q6. Should the
standing law in Section 410 codify statutory standing and common law standing,
but not extend standing law beyond those two concepts?
Q7. Should the
standing law in Section 410 include standing conferred by agency regulations,
and court rules?
[Questions based on
transcript comments and questions]
2. § 507. Exhaustion of Administrative
Remedies
MSAPA Draft
Reference [substantive] [Page 69, lines 29 to 30, Page 70, lines 1 to
16]
Q1. The new material in
this section is in Subsections (c) and (d) and pertain to rulemaking only.
Subsections (c) and (d) are entirely new. They permit a person who did not
participate in a rulemaking proceeding to appeal the rule without exhausting
administrative remedies. However, before doing so, the party that is
challenging the rule must petition the agency to initiate rulemaking in order
to resolve or cure the issues that the petitioner is challenging, and disclose
that petition and the agency action on it to the court.
Q2. Should
subsections (a), and (b) include reference
to specific state statutes that require the filing of a petition for
reconsideration, or other specific exhaustion requirements beyond those
included in the language of subsections (a)(, and (b)?
Q3. Should the
petition requirement in subsection (d) for non parties to rulemaking
proceedings be retained when it may be difficult for persons to ascertain what
issues were raised and considered in the rulemaking proceeding?
Q4. Should the
language of subsection (c) be changed so that persons challenging rules based on lack of constitutionality or
lack of statutory authority (facial challenges) be required to have
participated in the rulemaking proceeding as a condition of seeking judicial
review of that rule ?
Q5. Should
subsection (c) be clarified to provide that it applies to rulemaking
proceedings in which the terms of the rule were modified after the notice
period?
Q6. Should
subsections (c), and (d) be deleted so that challengers to rules must have
participated in the rulemaking proceeding?
[Questions based
upon transcript comments and questions]
3. § 508. Agency Record on Judicial
Review; Exception
MSAPA Draft
Reference [substantive] [Page 71,
lines 7 to 11]
Q1. Is the
term “manifest injustice” too difficult to apply without a definition? Drafters
of UMA had difficulty with it.
Q2. Should evidence
outside the record of the proceeding be permitted to be considered when persons
are challenging the constitutionality of agency action?
[written comments]
4. § 509. Scope of Review (Alternatives 1
and 2)
MSAPA Draft
Reference [substantive] [Page
71, lines 28 to 32, Page 72, lines 1 to 22, Page 73, lines 1 to 22, and Page
74, lines 1 to 22].
Q1. The drafting committee is divided
on the approach to take to scope of review, and has put two alternative
versions of scope before the annual meeting for guidance. Alternative 1 is
general and would leave considerable discretion to the courts. Alternative 2 is
a detailed approach that some commentators and a few states have adopted. The
second and third paragraphs of the note following the text of the section give
some of the major arguments for each alternative. Alternative 2 is the longest
version of scope that research has disclosed. There are versions available that
are longer than alternative 1, but considerably shorter than alternative 2.
Q2. Should
there be introductory language that precedes the list of factors in Alternative
2?
Q3. [Alternative 2,
Subsection (3), line 16] should the introductory clause read “..has been prejudiced by the agency
action…”. (delete review….following)?
Q4. Should Alternative
2 be dropped or put into the comments given the major policy changes reflected
in alternative 2 for states that have existing law provisions based on the 1961
act?
Q5 Should
Alternative 1 be retained as the only judicial review standards provision given
that it is similar to most states existing judicial review standards law?
Q6. Should the
terms “material error” be added to modify the term prejudiced in subsection
(3)?
Q7. Should
subsection (a)(3)(F)(ii) [alternative 2] and (b) delete the language “cited by
any party” so that reviewing courts can consider evidence in the whole record
whether or not cited by any party?
Q8. Should Section
509 include provisions governing intervention at the judicial level that are
similar to the intervention provisions at the administrative level codified in
Section 410?