by Patricia Salkin ¹

ABA APPROVES MODEL CENTRAL PANEL STATUTE

At its San Antonio meeting, the Council of the Administrative Law Section approved a model state ALJ central panel statute. The model act was then approved by the ABA House of Delegates during the Mid-Year Meeting.

More than 20 states already have central panels or central hearing offices. Under a central panel system, adjudicated cases are heard by ALJs that work for an independent agency, not for the agency that brings the case. A central panel ALJ writes a proposed decision; the agency heads then make the final decision.

The model act which the Council approved was drafted by the National Association of Administrative Law Judges. The act contains significant protections for the independence of central panel ALJs. It also provides for a chief ALJ who is empowered to monitor the quality of state administrative hearings. The Council negotiated a number of minor modifications in the NAALJ's draft and then approved the revised model act.

The Act is available on the Internet through the ABA Administrative Procedure Act Database at http://www.law.fsu.edu/library/admin/alj.html.

CALIFORNIA APA APPLIES TO INTERPRETIVE RULES

In Tidewater Marine Western, Inc. v. Bradshaw, 59 Cal.Rptr.2d 186 (1996), the California Supreme Court held that the time consuming rulemaking provisions of the state's APA apply to the adoption of interpretive rules.

The Court was impressed by arguments that requiring APA compliance will deter agencies from adopting interpretations of general applicability, thus harming both law enforcement and the general public. See Asimow, "California Underground Regulations," 44 Admin. L. Rev. 43 (1992). However, the Court found that APA language tied the Court's hands; the Legislature must solve the problem. Fortunately, the California Law Revision Commission is studying this issue and will soon produce legislative recommendations.

In Tidewater, the Court sketched out a new rulemaking exception for agency restatements of prior adjudicatory decisions or prior advice letters. The Court also held that the only sanction for failure to comply with the APA is that courts will not defer to invalidly adopted interpretations. But an invalidly adopted interpretation will not result in automatic invalidity of an agency enforcement action based on the interpretation.

1995 NORTH CAROLINA APA AMENDMENTS EXTEND RULES REVIEW COMMISSION'S AND LEGISLATURE'S AUTHORITY OVER RULES

In 1995, the North Carolina Legislature amended its APA to extend the review authority of its Rules Review Commission ("Commission"), originally created in 1978, as well as the power of its Legislature.

The Commission, an eight member independent "citizens" commission appointed by the North Carolina Legislature, now has veto power over agency rules: if the Commission does not approve an agency rule, the rulemaking process stops and the rule cannot go into effect. The grounds for vetoing rules include vagueness, lack of statutory authority, and lack of necessity to carry out legislative intent. The Commission, which meets once a month, is not subject to the restrictions on lobbying or ex parte contacts that normally apply to administrative agencies.

Between November 30, 1995, the date the 1995 amendments became effective, and Summer 1996, approximately 150 rules went through this process. Although the vast majority of rules have been approved without controversy, the Commission has used its authority to veto several controversial rules, sometimes in response to political opposition to the rules. For example, in July 1996 the Commission vetoed wetlands rules proposed by the state Environmental Management Commission because the Commission believed the rules were vague and that the agency was without the statutory authority to adopt them, despite the state Attorney General's opinion to the contrary. More recently, the Commission vetoed a certificate-of-need process for open-heart surgery centers, opposed by large health care interests in the state, and rules restricting sewage from hogs, opposed by the strong farming interests in the state. In both instances, political appeals were made directly to the Commission by representatives of those interests opposed to the rules.

In addition, under the 1995 amendments, a North Carolina legislator may stop the agency rulemaking process by filing a bill to stop the process within 30 days of the beginning of the legislative session. Once such a bill has been filed, the agency rule cannot take effect until the bill passes, the bill is killed, or the session ends without the bill passing.

For more on North Carolina's recent reforms, see Harry E. Payne, Jr., Regulatory Reform: An Administrator's Viewpoint, 31 Wake Forest Law Review 789 (1996); Jack Betts & Maria Henson, Above the Law: How Eight Unelected Citizens Wield the Power to Stop State Government in its Tracks, The Charlotte Observer, Nov. 24, 1996, at 1C; or contact Professor Jim Rossi, Florida State University College of Law, 904/644-8308, jrossi@law.fsu.edu.

SOUTH CAROLINA PLACES ALJ DECISIONS ON THE INTERNET

The decisions of the South Carolina ALJ Division are available on the Internet at http://www.law.sc.edu/alj/alj.htm. This resource, a project of The Coleman Karesh Law Library at University of South Carolina School of Law and the South Carolina ALJ Division, organizes decisions by agency, allows for keyword searching, and provides access to ALJ Division Rules and Annual Reports. Some portions of the database begin with decisions made in November 1996, while others are completely retrospective to 1994. For announcements about other ALJ or central hearing sites online, check the ABA Administrative Procedure Act Database, on the Internet at http://www.law.fsu.edu/library/admin/.

NAARR PUBLISHES SURVEY OF RULES REVIEW

The 1996-97 Administrative Rules Review Directory and Survey is available from the National Association on Administrative Rules Review (NAARR), associated with the Council of State Governments. The Directory and Survey, which provides information on individuals and entities responsible for review of rules in state systems of governance, claims to be the first survey in its field. It includes information on each state's statutes governing the rules promulgation and review processes, public participation in those processes, oversight entities, review criteria (including cost-benefit analysis), risk assessment and economic impact analysis and challenges to proposed rules. Information was gathered from administrative rules review entities in each of the 50 states by the Department of Political Science at Appalachian State University under the direction of NAARR. Copies are available to NAARR members for $25 and non-NAARR members for $35. To order a copy, contact CSG Midwestern Office / 641 East Butterfield Road, Suite 401 / Lombard, IL 60148; tel 630/810-0210.

VIRGINIA'S ADMINISTRATIVE CONFERENCE

Virginia now sports its own version of the Administrative Conference of the United States, the Virginia Administrative Law Advisory Committee. The Advisory Committee includes representatives of business, local government, the state bar, state agencies, the academic community, hearing officers, the Virginia Supreme Court, and public interest associations. The Committee conducts continuing education programs in administrative law and studies proposed statutory changes.

The Commission's study on ex parte contacts proved highly controversial. Its proposal that agencies publish their policies on ex parte communications was still-born in the Virginia Code Commission. The Commission's study of discovery prompted the Department of Professional Licensing Boards to reconsider its policy of refusing to provide licensees with a formal adjudicative hearing when they were dissatisfied after an informal process. The studies are available on the web at http://legis.state.va.us/codecomm/alachome.htm

VIRGINIA REGS ON THE WEB

The Virginia Administrative Code is now available both in a printed collection of 21 volumes and on CD Rom. Both are published by Lawyers' Cooperative Publishing Co. In addition, both the Code and the table of contents of the bi-weekly register of regulations are available on the Web. The site is http://legis.state.va.us/codecomm/codhome2.htm.

LAW REVIEW ARTICLES ON STATE ADMINISTRATIVE LAW

Suzanne Antley, Judicial Review of Non-court Decisions: a Constitutionally Based Examination of Arkansas' Review System, 49 Ark. L. Rev. 425 (1996).

Nancy D. Freudenthal and Roger C. Fransen, Administrative Law: Rulemaking and Contested Case Practice in Wyoming, 31 Land & Water L. Rev. 685 (1996).

Michael Maslanka et al., Survey of Illinois Law: Administrative Law, 20 S. Ill. U. L.J. 667 (1996).

William B. Swent, Student Survey, Administrative Law, 48 S.C.L. Rev. 1 (1996).

Robert Wachter, Recent Development, an Analysis of the Standing and Jurisdiction Prerequisites for Direct Appeal of Agency Actions to the Circuit Court under the Hawaii APA after Bush v. Hawaiian Homes Comm. and Pele Defense Fund v. Puna Geothermal Venture, 17 U. Haw. L. Rev. 375 (1995).

Roy Pulvers, Separation of Powers Under the Oregon Constitution: A User's Guide, 75 Or. L. Rev. 443 (1996).

1. Director, Government Law Center, Albany Law School; Co-Chair, State Administrative Law Committee. Contributors to this column include: Michael Asimow, UCLA School of Law; Jim Rossi, Florida State University College of Law; and J. P. Jones, University of Richmond Law School.