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Oklahoma Administrative Law Bar Exam Outline

Law Outlines > Oklahoma Bar Bundle Outlines

This is an extract of our Oklahoma Administrative Law Bar Exam document, which we sell as part of our Oklahoma Bar Bundle Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Oklahoma Bar Bundle Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Oklahoma Administrative Law

* Overview o Substantive Powers

*
Enabling statute specified the powers of the agency.

*
Agency can only exercise the substantive powers granted to it by the

enabling statute o

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 o

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

o

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 futureeffect 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 dayspost 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 oralhearing 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 andlegislature, or in some cases upon approval by legislature

*

Promulgated Rule W/in 30 days after rule finally adopted, agency files rule w/ Officeof Secretary of State responsible for printing Oklahoma Register and OK Administrative Code "Finally Adopted" rule considered "promulgated" upon publicationin OK Register If conflict between final adopted & published, then Published RulecontrolsEffective Date of Promulgated Rule

* Finally adopted rule is effective 10 days after publication in OK

Register (unless later date required or specified) o

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.

o

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

o

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 issuesw/in context of that action

* Article II: Individual Proceedings & Exercise of Agency's Quasi-Judicial Power o Overview:

*
Right to Individual Proceeding Will depend on if Enabling statute of agency requires an individual*

o

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, butdoesn'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 board or commission

* Administrative head of an agency

* Administrative Law Judge

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