by Patricia Salkin ¹

Maryland

Following a report of suspected abuse, the Prince George's County Department of Social Services (PGCDSS) notified C.S. that it had conducted an investigation and determined that C.S. was responsible for an incident of "indicated" abuse, and that it was going to place C.S.'s name on its central registry of suspected child abusers. After C.S. requested a hearing, an administrative law judge of the Office of Administrative Hearings (OAH) reviewed the department's documentation pursuant to the procedures of the Family Law Article of the Annotated Code of Maryland. Under these procedures, C.S. was only allowed to present a written statement in support of C.S.'s position. After the ALJ upheld the department's finding, C.S. filed a petition with the Circuit Court requesting judicial review of the ALJ's order. The circuit court dismissed the petition on the grounds that the PGCDSS was not a state agency, and therefore the provisions in the Administrative Procedure Act granting judicial review did not apply to the ALJ's actions.

C.S. sought review by the Court of Appeals, Maryland's highest ranking appellate court, arguing that the OAH was the relevant state agency, and raising various due process and statutory arguments to support his claim that the circuit court could properly review the ALJ's action. In arguments before the court, the PGCDSS admitted that the OAH was a state agency, but contended that the legislature did not intend for the procedures of the Administrative Procedure Act to apply to the limited hearing provided by the Family Law Article, and that judicial review of the ALJ's decision would be inappropriate.

In C.S. v. Prince George's County Department of Social Services, 343 Md. 14, 680 A.2d 470 (1996), the Court of Appeals vacated and remanded to the circuit court with instructions to remand to the Office of Administrative Hearings for further proceedings. The hearing provisions utilized in this case provide for a limited review of the documentation created by a local department of social services. Before a department may place a suspected child abuser's name on a central registry, however, another section of the Family Law Article gives the alleged abuser the right to request an additional hearing. The hearing provided there is not limited to the procedures specified in the sections actually used. Instead, the hearing is a contested case, within the meaning of the Administrative Procedure Act. C.S., therefore, is entitled to a contested case hearing before C.S.'s name may be entered on a central registry of suspected child abusers.

This case is important because of its potential interpretation as holding that a "limited" non-adjudicatory hearing is not sufficient due process for the placement of an individual's name on a Central Registry of child abusers. The court held that placement of a person's name on such a registry requires a contested case hearing under Maryland's Administrative Procedure Act, and that the citizen, therefore, is entitled to a full panoplied APA contested case hearing. The court primarily relied on the statutory language in the Family Law Article, but an expansive reading suggests a general due process right to a full hearing.

The court's decision has required OAH to limit its decisions following the non-adjudicatory hearing process to a determination of whether the agency's finding and identification of the person as a child abuser or neglector is correct. The appellant is then notified of the right to a full contested case hearing before his/her name may be placed in a central registry.

This court ruling has the potential to double OAH caseload in this area, requiring both a non-adjudicatory hearing process and a contested case hearing for each appeal. To date, this workload has been avoided because the State agency has elected to discontinue placing names on its Child Abuse Central Registry. However, still unresolved is whether the agency automated master file constitutes a central registry permitting the appellant to request a full contested case hearing under the court's decision. Marylands's OAH has received numerous requests for reconsideration of decisions in light of the court's ruling and it is expected that this decision will generate significant interest before the General Assembly this session. Submitted by John W. Hardwicke, Chief Administrative Law Judge, Maryland Office of Administrative Hearings.

California

ALJ Cannot Award Prejudgment Interest

An important issue in administrative adjudication is whether ALJs and agencies have the power to award the same remedies a court can award. For example, if an agency can make a monetary award, can it also order payment of punitive damages, restitution, or damages for emotional distress?

In California, courts have been reluctant to empower agencies to grant remedies not expressly provided by statute. Dvna-Med. Inc. v. FEHC, 241 Cal. Rptr. 67 (1987) (no punitive damages in employment discrimination case).

Recently, in a 4-3 decision, the California Supreme Court refused to allow the ALJs of the Unemployment Insurance Appeals Board (UIAB) to award prejudgment interest on a grant of unemployment benefits. AFL-CIO v. UIAB, 56 Cal. Rptr. 2d 109 (1996). In the face of legislative silence, the court was unwilling to grant the Board an implied remedy.

Ironically, if UIAB denies that the applicant is eligible for benefits, and the applicant is successful on judicial review, the reviewing court does award interest accruing form the time that the applicant should have started receiving benefits. The dissenting judges seized on this anomaly. They also stressed that the legislature probably would have wanted to compensate successful recipients of unemployment benefits for the long delays inherent in the administrative process. Submitted by Professor Michael Asimow, UCLA School of Law.

Oregon

APA Does Not Provide for RepresentationalStanding

In Local No. 290, Plumbers and Pipefitters v. Oregon Dept. of Environmental Quality, 323 Or. 559, 919 P.2d 1168 (Or. 1996), the Oregon Supreme Court held that the state APA does not encompass the notion of representational standing within the language authorizing judicial review for "any person adversely affected or aggrieved." Suit was brought by a local union challenging as insufficiently protective of the environment air and water permits issued by Oregon's Department of Environmental Quality. The union sought review under Oregon's APA, which provides judicial review of administrative orders to "any person adversely affected or aggrieved" by the order. The union did not appeal a lower court determination that the union was not itself adversely affected or aggrieved, but rather it maintained that its members were, and that it was suing on their behalf. The Oregon Supreme Court stated that the issue was simply one of statutory construction, and a "not difficult" one at that -- the statute requires the person adversely affected or aggrieved to bring the action; it does not authorize another to bring the suit for that person. On one level it is perhaps surprising that, when the state APA provision is virtually identical to the Federal APA, suggesting perhaps a legislative intent to model the provision on federal law, the Court totally ignores judicial interpretation of the federal language. Similarly, it might be surprising that the Court likewise ignored commentary under the Model State APA (1961), upon which Oregon's APA is generally based, or practice in other states that have adopted it. It might be surprising, but to students of Oregon case law generally, and administrative law in particular, studied ignorance of federal and other state law is the norm. This is supposedly justified on the basis of legislative supremacy -- only the legislature can make law in these areas, but it is at least possible that the legislature's intent was to have Oregon law consistent with other states' or federal law on the subject. Provided by Professor William Funk, Lewis and Clark Law School.

1. Director, Government Law Center, Albany Law School; Co-Chair, State Administrative Law Committee.