ELEMENTS OF THE ADMINISTRATIVE PROCESS: FORMAL, SEMI-FORMAL, AND FREE-FORM MODELS* L. HAROLD LEVINSON** Page 873 875 875 877

INTRODUCTION .............................................

I.

CONCEPTUAL APPROACH .............................

A. Legal Requirements in Decisionmaking Proceedings B. Elements ...................................... C. Distinction between Formal, Semi-formal and Freeform Proceedings ............................... 878 II.

OF SELECTED FORMAL AND PROCEEDINGS ........................................ ELEMENTS

SEMI-FORMAL

Preliminary Inquiries, Submittals, Determinations and Settlements ................................ 1. Preliminaryinquiries and submittals ........... 2. Preliminary determinations and settlements ..... B. Preparationfor Further Proceedings ............... 1. Initiatingfurther proceedings ................. 2. Notice ..................................... 3. Intervention ............................... 4. Subpoenafor attendance of witnesses .......... 5. Discovery .................................. 6. Prior authorization, screening ................ C. Assembling Facts and Opinions .................. 1. Evidence limitations ......................... 2. Investigation by decisionmaker ............... 3. Evidence presentations ...................... 4. Cross-examination and access to adverse evidence .....................................

880

A.

881 882 885 887 887 890 892 893 894 895 896 896 898 900 901

* The author gratefully acknowledges research assistance rendered by George M.

Kryder III, J.D., 1977, Vanderbilt University, while be was a law student. ** B.B.A., LL.B., University of Miami; LL.M., New York University; J.S.D., Columbia University. Professor of Law, Vanderbilt University.

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5. Argum ent .................................. 6. Assistance of counsel and others .............. 7. Conversion of pending proceeding from one type to another ................................. D . Decision ...................................... 1. Decisionmaker .......................... ... 904 2. Impartiality of decisionmaker .............. 3. Submittals by parties ..................... 4. Record ................................. 5. Form, findings, reasons ................... 6. Filing, effective date ..................... 7. Reconsideration ......................... E. Publicity ................................... 1. Open proceedings ........................ 2. Public access ............................ 3. Publication ............................. F . Review ..................................... 1. Executive/administrativereview ............ 2. Legislative review ........................ 3. Judicialreview .......................... III. FREE-FORM PROCEEDINGS ........................ A. An Endangered Species ...................... B. Controls over End Result ..................... IV.

MODEL BUILDING ...............................

A. B. C.

Comparisonswithin the Grid ................. Use of the Grid as Basis for Classifying Other t Iroceedings ................................... Beyond Classification ........................

V. M ODEL GRIDS .................................. APPENDIX A .........................................

APPENDIX B

.........................................

934 936 938 938 940

INTRODUCTION

The literature of administrative law classifies the decisionmaking proceedings of agencies as being either "formal" or "informal." The "formal" category consists of evidentiary, trial-type hearings, modeled on the judicial process, leading to decisions based on the record. The term "informal," as found in the literature, encompasses all types of agency proceedings that do not fall within the "formal" classification. 1 1.

The term "informal" appears in three contexts in the literature of administrative

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As long as the major concern of scholars was focused on the formal proceeding, this binary distinction served the useful purpose of separating the relatively interesting formal proceeding from the relatively uninteresting residue of proceedings that were classified as "informal." Now that scholarly attention has extended, belatedly, beyond the formal proceeding, 2 the continued utility of the formal/ informal classification is questionable. The present article proposes to recognize, instead, three categories of agency proceedings: formal, semi-formal, and free-form. As the terms are used here, "formal" retains its established meaning. "Semi-formal" proceedings are those in which the agency is required by law to follow some sort of prescribed procedure, which however does not coincide with the formal model. "Free-form" proceedings are those in which the agency is not subject to any legally binding procedural requirement at all, and is therefore at liberty to adopt any procedure it wishes, or no procedure at all. In order to facilitate analysis and model-building, the article identifies a series of procedural stages and other ingredients, designated here as the "elements" of the administrative process, that can serve as a uniform set of headings, under which the components of any type of administrative proceeding can be described. This series of elements is used as the framework for the analytical description of a law. First, it denotes adjudication by procedures other than the "formal," trial-type evidentiary hearing. See, e.g., B. SCHWARTZ, ADMINISTRATIVE LAw 426 (1976) [hereinafter cited as SCHWARTZ]; Gardner, Procedures by Which Informal Action Is Taken, 24 AD. L. REV. 155 (1972); Gardner, The Informal Actions of the Federal Government, 26 Am. U.L. Rev. 799 (1977); Verkuil, A Study of Informal Adjudication Procedures,43 U. Cm. L. REv. 739 (1976) [hereinafter cited as Verkuil, Informal Adjudication]. Second, the term "informal" is used in reference to notice-and-comment rulemaking, in contrast to those rare situations in which a statute requires rulemaking to be conducted in accordance with the procedures of formal adjudication. See, e.g., Hamilton, Proceduresfor the Adoption of Rules of GeneralApplicability: The Need for ProceduralInnovation in Rulemaking, 60 CALIF. L. REV. 1276, 1276-78 (1972); Verkuil, Judicial Review of Informal Rulemaking, 60 VA. L. REV. 185, 186-87 (1974) [hereinafter cited as Verkuil, Informal Rulemaking]. More often, the term "informal" is used in a third and broader sense to include both of the above as well as everything else that an agency does other than formal adjudication. See, e.g., K. DAVIS, DISCRETONARY JUSTICE 116-20 (1969); Wil-

liams, Securing Fairness and Regularity in Administrative Proceedings, 29 AD. L. REV. 1, 23 (1977). 2. In addition to sources cited in note 1 supra, see K. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES, CH. 4 (1976); Davis, Revising the Administrative Procedure

Act, 29 AD. L. REV. 35, 48-50, 56-57 (1977); Friendly, "Some Kind of Hearing," 123 U. PA. L. REV. 1267 (1975) [hereinafter cited as Friendly]; Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factorsin Search of a Theory of Value, 44 U. Cm. L. REV. 28 (1976) [hereinafter cited as Mashaw].

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number of selected types of proceedings. This description is followed by a discussion of free-form proceedings, with special reference to the controls that are imposed over the end results reached in such proceedings. Finally, the article portrays agency proceedings graphically, as a grid, 3 the left column consisting of a vertical listing of the elements. Any type of administrative proceeding, actual or hypothetical, can be represented in a vertical column beside the list of the elements. Numerical coding and data processing become possible. Description, comparison, evaluation, and model-building are facilitated. I.

CONCEPTUAL APPROACH

Before selected types of administrative proceedings are analyzed in terms of a series of elements, some conceptual and definitional questions require attention. A.

Legal Requirements in DecisionmakingProceedings

The study is limited to agency proceedings 4 leading to decisionmaking, 5 together with such intimately related matters as the availability of external review of agency decisions by executive, legislative, or judicial officers. Accordingly, the study excludes non-decisional activities involved in such functions as agency housekeeping, 6 routine compilation of statistics, and routine distribution of public documents and information. Legal requirements pertaining to selected agency proceedings are examined, 7 without regard to the manner in which the proceedings 3. See Appendix A infra.

4. As used in this article, the term "agency" includes the President of the United States and the Governors of states, as well as persons holding offices created by statute, and the term "proceeding" includes the performance of functions under authority granted directly by the constitution as well as authority delegated by the legislature.

The extent to which legal requirements can be imposed upon the chief executive in the exercise of powers derived directly from the constitution is discussed in notes 320-28,

infra. 5. The term "decisionmaking" means the final outcome of rulemaking or adjudica-

tion, and does not mean the making of interlocutory decisions such as the decision to prosecute, or to hold a hearing in a certain location, or to receive a certain item of

evidence. 6. Decisionmaking is involved in some types of agency housekeeping, including personnel and procurement, and such decisional activities would fit within the type of

study explored in this article. The distinction between decisional and non-decisional activities may be analogized to the distinction between discretionary and ministerial acts of agencies. 7. Procedural requirements that are imposed by law may generally be enforced by the courts. However, this generality is subject to a number of exceptions. For example,

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may be conducted in fact. 8 A comprehensive study of legal requirements would have to examine all federal and state administrative procedure acts (APA's), as well as statutes establishing procedures for specific administrative programs, procedural rules adopted by agencies, rules of court where applicable, and pertinent case law. Recent decades have witnessed a proliferation of legal requirements pertaining to agency proceedings. Some of the new requirements result from the "due process revolution" of the early 1970's, exemplified by Goldberg v. Kelly. 9 Additional requirements result a statute or common law may preclude judicial review, or the alleged procedural irregu-

larity may be considered harmless error in the circumstances of a particular case, or the question of procedural irregularity may be beyond the range of issues that the plaintiff has standing to raise, or the legally required procedure may be contained in an unpublished manual that is unknown to the plaintiff or even to the court. Whether or not judicial enforcement of procedural requirements is available, these requirements may yet be enforced in some circumstances by chain-of-command supervision (within the same agency or from a superior agency), or by post-audit performed by inspectors from other agencies. For a discussion of an extra-judicial quality control system for monitoring the performance of agency personnel, see Mashaw, The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims, 59 CORNELL L. REv. 772 (1974). If neither judicial nor administrative enforcement is available, the procedural requirements are, in the language of jurisprudence, leges imperfectae. J. STONE, LEGAL SYSTEM AND LAWYERS' REASONINGS 174, 180-88 (1964). The present author would still regard procedural requirements as "laws," even if unenforceable. 8. The choice of legal requirements rather than agency practice as the basis for this study reflects considerations of feasibility; the legal requirements are obviously easier to unearth and classify than is agency practice. Utility is also taken into account, as the analysis of legal requirements produces conceptual results and may also serve as a building block for future studies of law as practiced. 9. The seminal case in this area is Goldberg v. Kelly, 397 U.S. 254 (1970), in which the Supreme Court reviewed New York State's pretermination procedures for welfare recipients and found them inadequate under the due process clause of the fourteenth amendment. Goldberg required that a hearing must be afforded the welfare recipient before termination of his benefits; and that a "fair hearing" would include such procedural elements as notice, an impartial decisionmaker, oral presentation of evidence and arguments, confrontation and cross-examination of adverse witnesses, disclosure of opposing evidence, and the right to retain counsel, to a determination on the record, and to a statement of reasons for the decision. 397 U.S. 254, 267-71. Subsequent cases have limited the broader implications of Goldberg by restricting it to its particular facts. When a full post-termination hearing is provided, for example, neither the termination of federal employment nor of disability benefits requires a full antecedent hearing such as that required in Goldberg. See Mathews v. Eldridge, 424 U.S. 319 (1976); Arnett v. Kennedy, 416 U.S. 134 (1974). It seems clear in regard to the later decisions that the governmental agency need not undertake a full Goldberg hearing wherever due process requires a hearing of some kind. Constitutional requirements will vary with the type of interest involved. Wolff v. McDonnell, 418 U.S. 539, 560 (1974). Recent federal cases following Goldberg are often cited as the "due process revolution" of the 1970's. See, e.g., Friendly, supra note 2, at

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from another revolution, brought about by provisions in the federal APA and in many state APA's, directing agencies to adopt and publish their own rules of formal and informal procedure.' 0 The codes of administrative rules of the federal and state governments constitute a vast catalog of procedural requirements concerning many types of administrative proceedings. These rules have attracted the attention of legal scholars only sporadically, in the context of litigation involving relatively narrow aspects of specific rules. Systematic analysis of all the rules of the federal government and all states would be a massive undertaking, and the anticipated benefits might not be considered worth the cost. Selected analysis might be feasible, however, especially if data processing techniques were brought into play. Unless reasonable attention is paid to federal and state administrative rules of procedure, scholars can hardly claim to portray the legal requirements applicable to agency proceedings. The present study makes no claims to exhaustive coverage. The types of agency proceedings selected for examination are identified below. B.

Elements

Administrative proceedings go through various sequences of procedural stages that can be classified by such terms as notice, reception of evidence, rendition of decision, and so on. The specific type of procedure at any stage-for example, the notice stage--differs from one type of administrative proceeding to another, but many types of proceedings share the requirement that some type of notice be given. The notice stage is therefore analytically useful as a heading under which the differing notice requirements of various types of administrative proceedings can be described, compared, and evaluated. A systematic study of administrative proceedings should take account of all procedural stages, and also of certain other intimately 1268 ("due process explosion"); Mashaw, supra note 2, at 29 ("due process revolution"); McCormick, The Purpose of Due Process: Fair Hearing or Vehicle for Judicial Review, 52 TEx. L. REV. 1257 (1974) ("veritable explosion in the application of the due process standard"); Tobriner and Cohen, How Much Process Is "Due"?: Parolees and Prisoners, 25 HAsTINcs L.J. 801 (1974) ("revolutionary expansion in the area of constitutional law known as procedural process"). 10. The federal APA provision is 5 U.S.C. § 552(a)(1)(B), (C) (Supp. V 1975). In the Revised Model State Administrative Procedure Act, see note 13 infra, a similar requirement is imposed by § 2(a)(1)-(3). See also 1 F. COOPER, STATE ADMINISTRATIVE LAW 167 (1965) [hereinafter cited as CoOPER]. No doubt compliance with these re-

quirements is uneven nationwide, as is judicial willingness to enforce them. See Verkuil, Informal Adjudication, supra note 1, at 795.

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related ingredients, such as rules of evidence, impartiality of decisionmaker, and availability of judicial review. The procedural stages and the other ingredients are the "elements" in terms of which this article analyzes various types of administrative proceedings. The elements-" have been derived from statutes, agency rules of procedure, case law and scholarly literature. When the study was undertaken, separate groups of elements were compiled, respectively, for formal adjudication, informal adjudication, and notice-and-comment rulemaking. However, considerable overlap was discovered, with many elements recurring in each of these groups. Accordingly, a single set of elements was compiled, consisting of those found in formal as well as informal proceedings, rulemaking as well as adjudication, in selected provisions of state as well as federal law. The single set consists of twenty-eight elements, and is used in the present study. It is not offered as a definitive set. Additional elements may have to be written in, upon discovery of stages or other ingredients that cannot be adequately analyzed by the twenty-eight elements used here, and some of the existing twenty-eight elements may have to be subdivided if they turn out to be too broad for analytical purposes.

C. Distinction between Formal, Semi-formal and Free-form Proceedings Adjudication under the Federal APA1 2 is not identical to the contested case hearing under the Revised Model State Administrative Procedure Act (RMA). 13 Yet administrative lawyers describe each of 11. The elements of the administrative process identified by this study are listed in note 336 infra.

12. 5 U.S.C. §§ 554-557 (1970). 13. Revised Model State Administrative Procedure Act §§ 9-12, 13 Uniform Laws Ann. (West Supp. 1977) [hereinafter cited as RMA]. The relatively minor contrasts between the Federal APA formal adjudication and the RMA contested case are indicated in Part II of this article, since these two types of proceedings are included among the seven that are subjected to analysis under the proposed 28 elements. The Model State Administrative Procedure Act was developed by the National Conference of Commissioners on Uniform State Laws, in conjunction with various sections and special committees of the American Bar Association. It was designed to assist states in drafting legislation on administrative procedure. The original model act was adopted in 1946. It was superseded in 1961 by the RMA. The great majority of states have enacted administrative procedure legislation, including 27 states that have been identified, in Uniform Laws Annotated, as adopting all or part of the RMA, either verbatim or with adaptations. These 27 RMA states are: ARK. STAT. ANN. §§ 5-701 to 715 (1976); CONN. GEN. STAT. §§ 4-166 to 189 (1977); D.C. Code §§ 1-1501 to 1510 (Supp. 1977); GA. CODE ANN. §§ 3A-101 to 124 (1975 & Cum. Supp. 1977); HAW. REV. STAT. §§ 91-1 to 18 (1968 & Supp. 2 1975); IDAHO CODE §§ 67-5201 to 5218 (1973 & Cum. Supp. 1977); ILL. ANN. STAT. ch. 127, §§ 1001-1021 (Smith-Hurd Cum. Supp. 1977); IOWA

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them as "formal," based on their close similarity to the judicial model in certain respects that are deemed crucial to the definition. This established usage can be restated in terms of the set of twenty-eight elements proposed in this article: in order to be classified as "formal," a type of administrative proceeding must be subject to legal requirements that conform, within a tolerable range, to certain specifications with regard to certain elements, including notice, presentation of evidence, cross-examination, record, and others that are essential to the "formal" classification. Thus the formal type of proceeding can be recognized by a characteristic pattern of specifications with regard to certain key elements. Before the terms "semi-formal" and "free-form" are defined, the twenty-eight elements must be divided into two categories, depending on whether or not they impose a procedural requirement in connection with the agency's decisionmaking process. For example, notice is regarded as a "procedural" element, while judicial review is "non-procedural." 17A.1-.23 (West Gum. Supp. 1977-78); LA. REV. STAT. ANN. §§ 49:951-:967 (West Cum. Supp. 1977); MD. ANN. CODE art. 41, §§ 244-256A (1971 & Cum. Supp. 1976); MICH. Comp. LAWs ANN. §§ 24.201-.315 (West Cum. Supp. 1977); Mo. ANN. STAT. §§ 536.010-.150 (Vernon 1953 & Cum. Supp. 1977); MONT. REV. CODES ANN. §§ 82-4201 to 4225 (Cum. Supp. 1975); NEB. REV. STAT. §§84-901 to 919 (1976); NEV. REV. STAT. § 233B.010-.160 (1965); N.H. REV. STAT. ANN. §§ 541-A:1 to :9 (1974 & CODE ANN. §§

Supp. 1975); N.Y. STATE ADNMN. PROC. ACT §§ 110-501 (McKinney 1976); N.C. GEN. STAT. §§ 15OA-1 to 64 (Supp. 1975); OKLA. STAT. ANN. tit. 75, §§ 301-327 (West 1976 &

Cum. Supp. 1976-77); R.I. GEN. LAws §§ 42-35-1 to 18 (1969 & Supp. 1976); S.D. COMPMED LAWS ANN. §§ 1-26-1 to 40 (1974 & Supp. 1977); TENN. CODE ANN. §§ 4-507 to 527 (Cum. Supp. 1976); VT. STAT. ANN. tit. 3, §§ 801-820 (1972 & Cum. Supp. 1977); WASH. REV. CODE ANN. §§ 34.04.010 to .940 (West 1965 & Supp. 1976); W. VA. CODE §§ 29A-1-1 to 7-4 (1976 & Supp. 1977); WIs. STAT. ANN. §§ 227.01-.26 (West 1957 & Supp. 1977-78); WYo. STAT. §§ 9-276.19 to .33 (Cum. Supp. 1975). At its August, 1977 meeting, the House of Delegates of the Ameican Bar Association adopted a proposal of the Section of Administrative Law, urging every state to adopt an administrative procedure act implementing the following principles: 1. State agency rulemaking normally be preceded by notice and an opportunity for interested persons to submit views or information; 2. Procedural rights in state agency adjudicative hearings be set forth by the statute with such particularity as may be feasible, in order to secure fairness coupled with efficiency. Matters worthy of consideration in this connection include requirements of adequate notice, rules of evidence, contents of the record, basis for the decision rendered, impartiality of the adjudicator, and the like; 3. State agency rules be published, and other state agency law or policy affecting rights of the public be made available generally for public inspection; 4. State agencies adopt rules describing the procedural rights of members of the public in their dealings with the agencies; 5. Adequate judicial review of state agency action be provided. House of Delegates Adopts Advertising D.R. and Endorses a Package of Grand Jury Reforms, 63 A.B.A.J. 1234 (1977).

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"Semi-formal" proceedings can now be defined as those in which the agency is subject to legal requirements with regard to at least one of the procedural elements, provided that the pattern of legal requirements does not qualify the proceeding to be classified as "formal." Thus such diverse proceedings as notice-and-comment rulemaking and the Goldberg v. Kelly pre-termination hearing are included within the broad "semi-formal" category. "Free-form" proceedings are not subject to legal requirements with regard to any of the procedural elements, although legal requirements may exist with regard to nonprocedural elements. In free-form proceedings the agency is therefore at liberty to adopt any procedure it wishes, or no procedure at all. II.

ELEMENTS OF SELECTED FORMAL AND SEMI-FORMAL PROCEEDINGS

Using the proposed set of twenty-eight elements, this part of the article analyzes seven types of administrative proceedings: formal ad15 14 judication as provided, respectively, in the Federal APA, the RMA, and the Florida APA; 16 notice-and-comment rulemaking in the same three statutes; 17 and "informal" adjudication in the Florida APA. 18 The seven proceedings were selected because of the influential status of the Federal APA and the RMA, and the innovative nature of the Florida APA. References are made, where appropriate, to the due process requirements of Goldberg v. Kelly 19 and subsequent cases, insofar as these cases have a bearing on the elements of the administrative process. The analysis of these selected proceedings is offered as an example of the use of the proposed set of elements in describing formal and semi-formal types of proceedings. The elements could also be used for the description of free-form proceedings, but such an exercise would produce a zero with regard to each of the procedural elements, and does not appear especially useful. Any type of administrative proceeding, including, but not limited to the seven featured here, can be 14. 5 U.S.C. §§ 554-557 (1970). 15. RMA §§ 9-12. 16. FLA. STAT. § 120.57(1), .58, .59 (Harrison 1975 & Supp. 1976). 17. 5 U.S.C. § 553 (1970 & Supp. V 1975); RMA § 3; FLA. STAT. § 120.54-.545 (Harrison Supp. 1976). 18. FLA. STAT. § 120.57(2) (Harrison Supp. 1976). Informal adjudicative processes are also found in the APA's of the following states: DEL. CODE ANN. tit. 29, § 6423

(Michie Supp. 1976); VA. CODE § 9-6.14:11 (Supp. 1977). 19. 397 U.S. 254 (1970). See note 9 supra.

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analytically described under this set of elements, or under a modified set if necessary. The twenty-eight elements are presented in six groupings: (A) preliminary inquiries, submittals, determinations, and settlements; (B) preparation for further proceedings; (C) assembling facts and opinions; (D) decision; (E) publicity; and (F) review. A.

Preliminary Inquiries, Submittals, Determinations, and Settlements Before an agency goes through a formal adjudicative process, it must first assemble preliminary information and perform other threshold functions. Agency personnel can then determine whether formal proceedings are necessary and, if so, what position the agency staff will take regarding the matters at issue. Sometimes these preliminary activities lead to a settlement, making further proceedings unnecessary. At the preliminary stage, the Federal APA requires the agency to give all interested parties opportunity for: (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and (2) to the extent that the parties are unable to determine a controversy by consent, hearing and decision on notice 0 and in accordance with [the 2 formal adjudicative provisions of the APA]. Two elements within the preliminary stage may be recognized, at least with regard to formal adjudication: (1) preliminary inquiries and submittals; and (2) preliminary determinations and settlements. These elements are "preliminary," as they arise before the more complex cycle of proceedings which are required for formal adjudication if the preliminaries fail to produce settlement. In semi-formal proceedings, the same two preliminary elements can often be discerned as "preliminaries" to the more complex cycle of proceedings required if settlement cannot be reached. An hypothesis for future consideration is that a well designed preliminary stage, consisting of inquiries and submittals, and opportunity for determinations and settlements, would be the functional equivalent of the essential procedural elements which would be required if the more elaborate procedures of later stages were invoked. This hy20. 5 U.S.C. § 554(c) (1970). The "fair hearing" requirements of Goldberg v. Kelly did not include any statement obliging the agency to consider preliminary submittals by the parties. Such preliminaries were available under the statutes and rules at issue, however, and were used in that very case before it reached the courts. 397 U.S. at 256-60.

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pothesis could be tested by subdividing the two elements of the preliminary stage into numerous components, representing miniaturized or functionally equivalent versions of the later stages, and using these subdivisions for the analysis of statutes, rules, and cases dealing with the preliminary stage. 1. Preliminary inquiries and submittals Preliminary inquiries and submittals are found in both adjudication and rulemaking. Most, if not all, formal or semi-formal administrative processes start with inquiries, submittals, or both, on a level "preliminary" to the more complex processes that will follow unless early settlement is reached. Adjudicative functions often start with the agency's receipt of a citizen application or complaint, or with an official inspector's report, followed by discussions between field agents and affected citizens, investigations by agency staff, conferences with agency supervisors, and other activities. The RMA 21 and Florida APA provisions on formal adjudication 22 and the Florida APA on informal adjudication 23 require the agency to give the parties an opportunity to work out preliminary settlements, and imply that the parties must have the related opportunity to submit facts, arguments, and offers of settlement. The Federal APA24 expressly requires the agency to consider facts, arguments, and offers submitted by the parties at the preliminary stage. All three statutes make special provision for preliminary submittals by parties threatened with license revocation or suspension. Under the Federal APA: Except in cases of willfulness or those in which public health, interest or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given-(1) notice by the agency in writing of facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful 25 requirements. The RMA and the Florida Acts are substantially similar, except that the licensee is given an opportunity to "show compliance" under the

21.

RMA § 9(d).

22.

FLA. STAT. § 120.57(1)(b)4 (Harrison Supp. 1976).

23. Id. § 120.57(2)(a)1, 2. 24. See text accompanying note 20 supra. 25. 5 U.S.C. § 558(c) (1970) (emphasis added).

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RMA, 2 6 or to "show that he has complied" under the Florida Act,2 7 instead of to "demonstrate or achieve compliance" as under the Federal Act. The Florida Act makes additional provisions regarding preliminary submittals in connection with license applications. 2 Within thirty days after an application has been received, the agency is required to examine it, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. The applicant's failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 29 thirty day period. The preceding paragraphs are based on the models implied by the Federal APA, the RMA, and the Florida APA, with a single "preliminary stage" followed by a single set of more elaborate procedures if settlement is not reached at the preliminary stage. More complex arrangements, making numerous procedural cycles available to dissatisfied parties, have been established by statute or rule for some agency functions. It seems convenient, in such situations to identify one of the cycles as the "most complex," as it features the greatest procedural complexity, and to subject that cycle to analysis in terms of the full range of elements discussed in this article. All procedures available before this "most complex" cycle would then be regarded as "preliminary," and all that are available afterwards would be regarded as "review. '" This classification may therefore produce multiple cycles of proceedings within the "preliminary" stage and, less probably, multiple cycles within the "revieV" stage, but, at any event, only one "most complex" cycle. 3 ' Notice-and-comment rulemaking provides other examples of preliminary inquiries and submittals. Rulemaking proceedings may start either on the agency's own motion or in response to a citizen's petition. The Federal APA confers upon an "interested person" the right to petition for the issuance, amendment, or repeal of a rule.8 2 The RMA contains similar language, and adds that each agency must 26. RMA § 14(c). 27.

28. 29. 30. infra. 31. 32.

FLA. STAT.

§

120.60(4) (Harrison 1975).

Id. § 120.60(2). Id. Executive/administrative review is discussed in text accompanying notes 272-81 See notes 40-41 & accompanying text infra. 5 U.S.C. § 553(e) (1970).

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adopt rules prescribing the form for petitions and the procedure for their submission, consideration, and disposition. Moreover, within thirty days after submission of a petition for rulemaking, the RMA requires the agency either to render a written, reasoned denial, or to initiate rulemaking proceedings. 3 3 The Florida APA permits "any person regulated by an agency or having a substantial interest in an agency rule" to petition for rulemaking; the remainder of the Florida 34 provision closely follows the RMA. All three Acts designate the materials that must be contained in the agency's notice of proposed rulemaking, and imply that the agency must conduct its own preliminary processes in order to prepare these materials before publication of the notice. The Federal APA 35 and the RMA 36 permit the agency to publish either the proposed rule or the subjects and issues to be covered by rulemaking. These publication requirements imply that the agency has a corresponding choice as to the amount of preliminary drafting undertaken before comments are invited from the public. If the agency wishes to publish the full text of the proposed rule at the time it publishes notice inviting comments, the agency obviously must have drafted the entire rule before this time. After considering any comments received, the agency may redraft the rule if it so desires. If the agency wishes to publish only the subjects and issues to be covered by rulemaking, however, the APA and RMA imply that the agency is under no obligation to have drafted the full text of the proposed rule before it publishes notice inviting comments. By contrast, the Florida APA contains a number of implications that the agency must have drafted the entire proposed rule before it publishes notice inviting comments. First, the Florida Act requires the notice of proposed rulemaking to include, among other items, a summary of the proposed rule and of its estimated economic impact, and the location where the text of the proposed rule or economic impact statement can be obtained if the full text is not included in the notice. 37 The implication is that the full text of the proposed rule must have been written before publication of the notice. Second, the Act authorizes any substantially affected person to seek an administrative determination of the validity of any proposed rule, by filing a

33. 34. 35.

RMA § 6. FLA. STAT. § 120.54(5) (Harrison Supp. 1976). 5 U.S.C. § 553(b)(3) (Supp. V 1975).

36. RMA § 3(a)(1). 37.

FLA. STAT. § 120.54(1) (Harrison Supp. 1976).

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petition within fourteen days after publication of the notice of proposed rulemaking. 38 This implies that the petitioner will by then have had an opportunity to read the full text of the proposed rule. Third, the Act requires the adopting agency to file a copy of each proposed rule and a copy of the notice of proposed rulemaking with the Administrative Procedures Committee of the legislature. 39 Again the implication is that the full text of the rule must have been drafted before publication of the notice. Under all three statutes, proceedings to permit public comment ensue only if eligible parties invoke their opportunity to bring these proceedings about. If no further proceedings are requested, the agency may move directly to its decisionmaking stage. If the agency had completely written the proposed rule at the preliminary stage, and if the agency received no comments, the finalization of the rule would be a relatively simple process. If, however, the agency wrote only a summary of the proposed rule, or if it merely identified the subjects and issues to be covered, the finalization of the rule would become more complex, even in the absence of comments. 2.

Preliminary determinations and settlements

The adjudicative provisions of the Federal APA, the RMA, and the Florida APA all require the agency to give an opportunity for preliminary settlements. These provisions imply that statutes or rules will identify those officials within the agency who possess authority to enter into legally binding settlements, and will establish procedures by which these officials will determine whether or not to settle specific cases. Another implication is that the settlement process must be exhausted (or waived) before the more complex procedures get under way. Sometimes the agency must make a preliminary determination, to be submitted to the parties for settlement, before more complex proceedings may start. An example is found in the Occupational Safety and Health Act (OSHA). 40 The statute provides that the Secretary of Labor may inspect premises of employers, issue citations if he finds violations, and issue a notice of a proposed penalty. The citation and proposed penalty notice are served on the employer by mail. The 38. id. § 120.54(4).

39. Id. § 120.54(11)(a). 40. Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1970). The decisionmaking procedures of the statute were recently sustained in Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442 (1977).

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employer may pay the penalty and remedy the violation, or he may demand a formal evidentiary hearing before an administrative law judge (ALJ). The ALJ's findings are subject to review by the Occupational Safety and Health Review Commission, and, ultimately, by the courts. Rules expand this statutory framework. The inspection is carried out for the Secretary by a Compliance Safety and Health Officer of the Department of Labor. 4 1 At the conclusion of his inspection, the compliance officer must confer informally with the employer and advise him of any apparent violations. During such a conference, the employer is given an opportunity to bring any pertinent information to the attention of the compliance officer. After the inspection and conference, the compliance officer prepares a report that is reviewed by the area director, who, if appropriate, confers with the regional solicitor. The area director then notifies the employer of the violation and proposed penalty. The employer exercises his choice whether to pay the penalty and remedy the violation, or to demand the formal evidentiary hearing, which is subject to review by the Commission and the courts. The compliance officer carries out a series of "preliminary inquiries," including his choice of premises to inspect, his reaction to information submitted by the employer during the informal conference at the conclusion of the inspection, his drafting of the report to the area director, and his personal interaction, if any, with the area director and other agency staff members. These steps could be isolated by subdividing the "preliminary inquiries and submittals" element into subunits. The area director makes a "preliminary determination" when he serves the employer with the citation and proposed penalty notice. Again, more detailed analysis could isolate subunits, such as the director's receipt of a report from his subordinate (the compliance officer), the director's consultation with other agency personnel (the regional solicitor), and the director's exercise of his own judgment as a prosecutor. The employer enters into a "settlement" if he decides to pay the penalty and remedy the violation. If the employer offers to settle by paying a smaller penalty than the director proposed, negotiations comparable to plea bargaining in the criminal process may ensue. This bargaining could be identified as still another subunit in a de-

41.

29 C.F.R. § 1903.3, .14, .15 (1976).

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tailed analysis of the "preliminary determinations and settlements" stage. In rulemaking, the proposed rule, summary, or list of subjects and issues prepared by the agency at the preliminary stage may be viewed as a "preliminary determination" resulting from the agency's "'preliminary inquiries," and interested parties may be regarded as "settling" if they refrain from requesting further proceedings at which comments would be elicited. B.

Preparationfor FurtherProceedings

If proceedings beyond the preliminary stage are required, preparatory measures are taken to pave the way for further proceedings. Six elements have been identified in connection with these preparatory measures: (1) initiating further proceedings; (2) notice; (3) intervention; (4) subpoena for attendance of witnesses; (5) discovery; and (6) prior authorization or screening. 1. Initiatingfurther proceedings In adjudicative matters, the Federal APA permits "all interested parties" to demand further proceedings, if preliminary processes do not result in acceptable settlements. 42 This seemingly broad coverage is reduced sharply when considered with other provisions of the Act. A "party" is defined as one who is entitled "as of right to be admitted as a party," 4 3 and the formal hearing described in the Act is available "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing."4 The result

42.

5 U.S.C.

§ 554(c)

(1970). Goldberg v. Kelly held that the recipient of welfare

benefits had a due process right to a "fair hearing" before the benefits could be terminated, a right that is based upon the recipient's statutory entitlement to the benefits. 397 U.S. 254, 260-62. The exact form of this hearing is a variable one. The Court in Goldberg, while stating that the hearing "need not take the form of a judicial or quasijudicial proceeding," id. at 266, proceeded to require almost all the elements of one. Friendly, supra note 2, at 1299. In Matthews v. Eldridge, 424 U.S. 319 (1976), the Court, holding that the procedures need only insure that the individual is given a meaningful opportunity to present his or her case, upheld termination of disability benefits without a prior judicial-type hearing. See note 9 supra. 43. 5 U.S.C. § 551(3) (1970). 44. Id. § 554(a). Certain exceptions to this statement exist to the extent that there is involved: (1) a matter subject to a subsequent trial of the law and the facts de novo in a court; (2) The selection or tenure of an employee, except a hearing examiner appointed under section 3105 of this title;

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of these narrowing provisions is that the Federal APA itself does not confer upon any person the status of a party who could demand further administrative proceedings. The Act merely prescribes the procedures that shall unfold upon the demand of a person who qualifies under another statute as a party for such purposes. An exception must be noted regarding licenses. The Federal APA declares that applicants for licenses shall be afforded "proceedings required to be conducted" in accordance with the adjudicatory provisions of the APA "or other proceedings required by law," and that licensees faced with withdrawal, suspension, revocation, or annulment of their licenses must be given "opportunity to demonstrate or achieve compliance with all lawful requirements." 4 5 An adjudicatory hearing would seem to be an "opportunity to demonstrate . . . compliance." It thus appears that the Federal APA is itself a source of the right to an adjudicatory hearing in license applications and revocations. Similarly, the RMA makes its contested case hearings available to "all parties." 46 The RMA defines "party" as one entitled "as of right" to be admitted as a party, 47 and defines "contested case" as a proceeding in which "the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing."4 8 Thus, the RMA provisions on contested cases are triggered only by a "law" that guarantees a hearing in the particular circumstances. 49 The RMA does not adopt the Federal APA's provision that confers the right to a hearing on applicants for licenses, but the RMA does require that "an opportunity to show compliance" is given to licensees faced with revocation, suspension, annulment, or

(3) (4) (5) (6)

proceedings in which decisions rest solely on inspections, tests, or elections; the conduct of military or foreign affairs functions; cases in which an agency is acting as an agent for a court; or the certification of worker representatives.

Id. 45. 5 U.S.C. § 558(c) (1970). Willfulness on the applicant's part or requirements of public health, interest, or safety can negate the agency's obligation to provide notice and an opportunity to achieve compliance. Id. 46. RMA § 9(a). 47. Id. § 1(5). 48. Id. § 1(2). 49. See Kopper Kettle Restaurants v. City of St. Robert, 439 S.W.2d 1, 3 (Mo. App. 1969) (APA defining a contested case as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing," means that there must be a statute, municipal charter, ordinance, or constitutional requirement for the hearing).

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withdrawal of their licenses, 50 thereby creating the right to a contested case hearing. By contrast, the Florida APA contains the guarantee of a hearing when an agency "determines the substantial interests of a party." 5' This hearing is "formal" to the extent that a disputed issue of material fact is involved; otherwise the hearing is "informal." 5 2 In order to demonstrate standing to demand further proceedings after preliminary processes have failed to produce an acceptable result, a party must therefore show that he qualifies, under the Florida APA itself, as one whose substantial interests are subject to determination by the agency. The statutes impose neither a time limit within which the party must invoke his right to demand further proceedings in adjudicatory matters, nor any particular form in which the demand must be presented. These matters could be covered appropriately in the agencies' procedural rules, subject to judicial controls to ensure that parties have a reasonable opportunity to seek additional proceedings. With regard to rulemaking, the APA's themselves confer standing. The Federal APA and the RMA require agencies to give "interested persons" an opportunity to participate;5 3 the Florida APA confers this

50. 51.

RMA § 14(c). FLA. STAT. § 120.57 (Harrison Supp. 1976).

52. Id. 53.

5 U.S.C. § 553(c) (Supp. V 1975); RMA § 3(a)(2). Under the Federal APA, an

agency is exempt from rulemaking procedures "to the extent that there is involved: (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts." 5 U.S.C. § 553(a)(1)(2) (1970). Except when notice or hearing is required by statute, the notice-and-comment subsection of the federal APA does not apply: (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. § 553(b)(A)(B) (1970). Under the RMA, If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 20 days notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The rule may be effective for a period of not longer than 120 days .

. .

I but the

adoption of an identical rule under subsections (a)(1) and (a)(2) of this section is not precluded. RMA § 3(b). In addition, the RMA gives interested parties an opportunity for an oral hearing only in proceedings involving "substantive rules," and then only if requested

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right upon "affected persons." 54 The APA's do not specify directly the time or manner in which an interested or affected person shall invoke the opportunity to participate. These matters, to some extent, are implied by the provisions of the Acts dealing with notice 55 and can be amplified appropriately by agency rule, or by specific announcements contained in the notice of proposed rulemaking itself. 2. Notice In adjudicative matters, the Federal APA requires the agency to give "timely" notice of the time, place, and nature of the hearing, the legal authority under which it is to be held, and the matters of fact and law asserted. 56 The RMA requires "reasonable" notice of these matters, 57 and, in the case of formal adjudications, the Florida APA requires fourteen days' (waivable) notice of the same matters. 5 8 The informal adjudication provision of the Florida APA requires "rea-

by 25 persons, by a governmental unit, or an association with 25 or more members. RMA § 3(2). 54. FLA. STAT. § 120.54(3) (Harrison Supp. 1976). If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within fourteen days after the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency of their cbntentions. Id. An exception is made if "an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action." Id. § 120.54(9). 55. See notes 56-65 & accompanying text infra. 56. 5 U.S.C. § 554(b) (1970). In addition, if the agency proceeding is a "meeting" of an "agency," as these terms are defined in the Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1976) (adding 5 U.S.C. § 552b) public notice must be given. For a discussion of the Act, see notes 237-41 & accompanying text infra. Goldberg v. Kelly required "timely and adequate notice" detailing reasons for the proposed agency action. 397 U.S. 254, 267-68. "The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it." Matthews v. Eldridge, 424 U.S. 319, 348 (1976), citing Joint Anti-fascist Comm. v. McGrath, 341 U.S. 123, 171-72 (1956) (Frankfurter, J., concurring). See also Friendly, supra note 2, at 1280-81; Verkuil, Informal Adjudication, supra note 1, at 789-90. 57. RMA § 9(a), (b). The RMA requires "a reference to the particular sections of the statutes and rules involved," RMA § 9(b)(3), while the Federal APA requires notice of the "legal authority and jurisdiction under which the hearing is to be held." 5 U.S.C. § 554(b)(2) (1970). The RMA requires "a short plain statement of the matters asserted," RMA § 9(b)(4); the Federal APA requires notice of "the matters of fact and law asserted." 5 U.S.C. § 554(b)(3) (1970). " 58. FLA. STAT. § 120.57(1)(b)2 (Harrison Supp. 1976). The Florida APA requires "a short and plain statement of the matters asserted by the agency and by all parties of record at the time notice is given." Id. § 120.57(1)(b)2d.

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sonable notice to affected persons or parties" of the agency's action, whether it is proposed or already has been taken, or of a decision to refuse action. A summary of the factual, legal, and policy grounds 59 therefor also must be included. For rulemaking procedures, the Federal APA requires notice to be published in the Federal Register, unless persons subject to the proposed rule are named, and either have been served personally or have actual knowledge of the rule in accordance with law. 60 The RMA requires twenty days' notice to be mailed to all persons on the agency's mailing list maintained for this purpose. Notice must also be published in the state's administrative register. 6 1 The Florida APA rulemaking provision is more elaborate. Notice must be mailed to the Administrative Procedures Committee, a joint committee of both houses of the legislature, with oversight responsibilities over rulemaking,6 2 and to all persons named in the proposed rule, as well as to all 63 persons on the agency's mailing list. Under the Florida APA, the proposed rulemaking must be brought to the attention of those classes of persons to whom the proposed action is directed, for example, consumers of a utility company which seeks rulemaking for purposes of obtaining rate increases. 64 Notice must also be published in the FloridaAdministrative Weekly at least twenty-one days before the intended action. 65 Thus, Florida requires mailing to affected parties in addition to publication, in contrast to the Federal APA which requires either one or the other. The RMA

59. Id. § 120.57(2)(a)1. 60. 5 U.S.C. § 553(b) (Supp. V 1975). The notice must include the time, place, and nature of the proceedings, the legal authority under which the rule is proposed, and the terms or substance of the proposed rule, or a description of the subjects and issues involved. Id. § 553(b)(1)-(3) (1970 & Supp. V 1975). 61. "The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views thereon." RMA § 3(a)(1). 62. See text accompanying notes 284-89 infra. 63. FLA. STAT. § 120.54(1) (Harrison Supp. 1976). 64. Id. 65. Id. § 120.54(1)(b). The contents of notice under the Florida APA are somewhat more elaborate than under either the RMA or the Federal APA. Notice must include a short and plain explanation of the purpose and effect of the proposed rules, a summary of the proposed rule, citations to specific legal authority, a summary of the estimated economic impact, and the location where the text of the proposed rule or economic impact statement can be obtained if the full text is not included in the notice. Id. § 120.54(1).

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takes an intermediate position, requiring publication and mailing to persons on the agency's mailing list. 3.

Intervention After proceedings have been started, it is often possible for persons to intervene, either as full or as limited participants. Notice-andcomment rulemaking, by its very nature, contemplates intervention by persons satisfying the test of eligibility-"interested persons" under the Federal APA6 6 and RMA, 6 7 or "affected persons" under the Florida Act.68 With regard to adjudicative proceedings, the question of intervention requires more elaborate discussion. Some significant contrasts are found by comparing the three statutes. Under the Federal APA69 and the RMA 70 a person may qualify as a party only by satisfying standards external to the Act. Only the Florida Act provides that a person is eligible to appear as a party if he satisfies criteria found in 7 the APA itself. ' The Federal APA recognizes that a "party" may be either a full or a limited participant; 72 the RMA refers only to "party," without any express or implied indication that limited participation is possible. 73 The Florida Act provides for full-participation parties, limited-participation parties, and limited-participation nonparties. 74 Other provi66. 5 U.S.C. § 553(c) (Supp. V 1975). 67. RMA § 3(a)(2). 68. FLA. STAT. § 120.54(3) (Harrison Supp. 1976). 69. " '[P]arty' includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes." 5 U.S.C. § 551(3) (1970). 70. "'[P]arty' means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." RMA § 1(5). 71. The Florida APA contains a threefold definition; "party" means: (a) Specifically named persons whose substantial interests are being determined in the proceeding; (b) Any other person who, as a matter of constitutional right, provision of statute or provision of agency regulation, is entitled to participate in whole or in part in the proceeding or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party; (c)Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceedings as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible, to become parties. FLA. STAT. § 120.52(9)(a)-(c) (Harrison 1975). 72. Supra note 69. 73. Supra note 70. 74. Supra note 71.

MODELS

1977]

sions of the Federal and Florida Acts deal further with the possibility of limited participation. The Federal APA permits an "interested person" to appear before an agency, "[slo far as the orderly conduct of public business permits, . . . for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function." 75 As interpreted by the courts, this provision, coupled with the definition of "party," is a liberal grant of the opportunity of "interested persons" to intervene as full or limited partici76 pants in agency proceedings. The Florida Act includes separate provisions on limited participation with regard to formal and informal proceedings. In formal adjudicatory proceedings, the Act provides that "the general public may be given an opportunity to present oral or written communications." 7 7 For informal adjudication, the Florida Act requires the agency to give "affected persons or parties" an opportunity to present evidence and argument. 78 The distinction within the Florida Act merits comment. In formal adjudicatory proceedings, the general public may be given an opportunity to make presentations when appropriate, while in informal adjudication the agency is required to extend this opportunity to "affected persons or parties." The interest of the general public in formal adjudicatory proceedings requires less procedural protection than does the interest of "affected persons or parties" in informal adjudication. 4.

Subpoena for attendance of witnesses

The Federal APA states that "[a]gency subpoenas authorized by law shall be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought."7 9 Such subpoenas shall be judicially enforced to the extent the court finds them to be "in accordance with law." 80 These provisions indicate that the Federal APA itself does not entitle any party to a subpoena; the entitlement must 1 come from some "law" other than the APA.8 75. 5 U.S.C. § 555(b) (1970). 76. See SCHWARTZ, supra note 1, at 263-68. 77. "If the agency proposes to consider such material then all parties shall be given an opportunity to cross-examine or challenge or rebut it." FLA. STAT. § 120.57(1)(b)4

(Harrison Supp. 1976). 78. Id. § 120.57(2)(a)2. 79. 5 U.S.C. § 555(d) (1970). 80. Id. 81. Goldberg v. Kelly did not involve the subpoena power. Some of the later four-

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The RMA contains no provisions concerning subpoenas. 82The It Florida APA contains a single set of provisions for subpoenas. confers subpoena power upon the agencies, establishes the right of parties to obtain agency subpoenas, outlines the defenses, and provides for enforcement. These provisions apply to formal adjudication, informal adjudication, and notice-and-comment rulemaking. The Act authorizes an agency or a hearing officer to issue subpoenas upon the written request of any party or upon the agency's own motion. Any subpoena issued to a member or employee of the legislature, however, must show on its face that the testimony sought does not relate to legislative duties. The respondent, before compliance and upon timely petition, may request the agency to invalidate the subpoena "on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant material ...."83 5.

Discovery The Federal APA authorizes the hearing examiner to "take depositions or have depositions taken when the ends of justice would be served," and to "hold conferences for the settlement or simplification of the issues by consent of the parties,"8 4 but the Act does not establish a general system of prehearing discovery. The RMA does not address depositions, prehearing conferences, or discovery.

teenth amendment cases decided by the Supreme Court, however, have held that the subpoena power may be an essential ingredient of due process. In Wolff v. McDonnell, 418 U.S. 539, 566 (1974), the Court noted that the right to present evidence is basic to a fair hearing, but that the unrestricted right to call witnesses from among the prison population carries "potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program." The implication is that a party is presumptively entitled to issue subpoenas to compel the appearance of witnesses, but this presumption can be overcome if the agency can demonstrate, to the satisfaction of the court, a reason why subpoenas should not issue. Along similar lines, the Court in Goss v. Lopez, 419 U.S. 565, 583-84 (1975), denied the right to subpoena witnesses in connection with a student's "short suspension" of ten days or less, but implied that the right might be available if longer suspensions were involved. See also Friendly, supra note 2, at 1282-87. SCHWVARTZ, supra note 1, at 107-10, reports that the right of a respondent to issue subpoenas in agency proceedings is recognized in a number of states, by statute or case law or both. 82. FLA. STAT. § 120.58(1)(b) (Harrison Supp. 1976). 83. Id. § 120.58(2) (Harrison 1975). Failure to comply with an agency subpoena, except while it is being subjected to orderly challenge, constitutes contempt of the agency. Contempt is punishable by any penalties that the agency is authorized by law to prescribe, or by court enforcement. In the absence of any other statute establishing a remedy, the Florida APA provides a fine of up to $500.00. Id. § 120.58(3). 84. 5 U.S.C. § 556(c)(4), (6) (1970).

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The Florida APA does not mention prehearing conferences. s5 The Act does establish a simple yet comprehensive system of discovery.

An agency or hearing officer is authorized, under the Act, "to effect discovery on the written request of any party by any means available

to the courts and in the manner provided in the Florida Rules of Civil Procedure."8 6 As with the subpoena power, discovery may not relate to legislative duties.8 7 A discovery order may be invalidated on

the same grounds as a subpoena, and is subject to the same enforcement provisions. 6.

88

Prior authorization,screening

Among the procedures featured in this article, only the Florida APA on rulemaking contains examples of prior authorization and screening which may be invoked at preparatory stages of the agency process. 8 9 First, any substantially affected person may seek an administrative determination of the validity of a proposed rule. 90 Second, each agency shall file a copy of its proposed rules with the Administrative Procedures Committee, and that committee may conduct oversight proceedings before the proposed rules are adopted. 9 1 In a number of other states, proposed rules must be submitted to the attorney general or the Governor for approval before promulga92 tion. 85. Although the Florida APA is silent with regard to prehearing conferences, the topic is covered in the FLA. ADMIN. CODE § 28-5.11 (Supp. 56 1975). This provision permits the hearing examiner, at his discretion, to determine whether to hold a prehearing conference. 86. FLA. STAT. § 120.58(1)(b) (Harrison Supp. 1976). 87. Id. 88. Id. § 120.58(2), (3) (Harrison 1975). 89. The availability of judicial review of interlocutory agency action could also be viewed as a prior screening device. See Federal APA, 5 U.S.C. §§ 704-705 (1970); RMA § 15(a); Florida APA, FLA. STAT. § 120.68(1) (Harrison 1975). 90. See notes 272-73 & accompanying text infra. 91. See text accompanying notes 284-89 infra. 92. NATIONAL AssOCIATION OF ATTORNEYS GENERAL, COMMITTEE ON THE OFFICE OF ATTORNEY GENERAL, REPORT ON THE OFFICE OF ATTORNEY GENERAL 340-42

(1971), reports that in at least 12 states, the attorney general is required by law to review administrative rules. Responses to questionnaires tabulated in the same report indicate that, in fact, the attorney general reviews some rules in 26 states, and reviews all rules in 17 states. The report does not attempt to reconcile the 12 states where review is required by law, with the 26-plus-17 states where review takes place in fact. The report indicates that "only two states apparently require clearance of administrative rules by the Governor, and then only in certain instances." Id. at 340. Further, "[oin the national level, the rules of several federal administrative agencies are subject to Presidential approval." Id. The attorney general exercises pervasive controls, including the screen-

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C. Assembling Facts and Opinions After preparations have been made, the decisionmaker conducts a hearing to assemble the facts and opinions of the participants. Some or all of the following elements are involved: (1) evidence limitations; (2) investigation by decisionmaker; (3) evidence presentations; (4) cross-examination and access to adverse evidence; (5) argument; (6) assistance of counsel and others; and (7) conversion of a pending proceeding from one type to another. 1. Evidence limitations The Florida APA has a single provision on evidence, applicable to both formal and informal adjudication. 93 The Florida provision, like the Federal APA94 and the RMA on adjudication, 9 5 requires the exclusion of irrelevant, immaterial, or unduly repetitious evidence. All three Acts manifest a relatively permissive attitude toward the reception of evidence, but at the same time, they restrict the type of evi96 dence that can constitute the basis of a decision. With regard to the reception of evidence, the Federal APA states that "a]ny oral or documentary evidence may be received." 9 7 A stricting of proposed agency activities, in those jurisdictions where that official and his as-

sistants serve as staff counsel to administrative agencies. Id. at 271-308. See also note 281 & accompanying text infra. 93. FLA. STAT. § 120.58(i)(a) (Harrison Supp. 1976). 94. 5 U.S.C. § 556(d) (1970). 95. RMA § 10(1). 96. See text accompanying notes 189-207 infra. 97. 5 U.S.C. § 556(d) (1970). The decision of the agency must be supported by "reliable, probative and substantial evidence" under this section of the Federal APA. Id. This section is supported by the requirement of "substantial evidence" in the judicial review provision, 5 U.S.C. § 706(2)(E) (1970). An amendment to § 556(d), enacted in 1976, adds that [tihe agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title (a new prohibition against ex parte communications, more detailed than the provisions originally contained in the APA] sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. Government in the Sunshine Act, Pub. L. No. 94-409, § 4(c), 90 Stat. 1247 (1976) (amending 5 U.S.C. § 556(d) (1970). Enforcement of this amendment could therefore result in a decision on the merits that would be unsupported by the evidence, and that would result instead from the punitive application of section 557(d). This amendment requires the ALJ or other recipient of an improper ex parte communication to place it in the record of the proceeding, and authorizes him to require the party who is the author of the communication to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation. Thus the improper ex parte communication would be part of the record of the proceedings, and a decision adverse to a party because of such communication

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MODELS

er approach is taken by the RMA, which provides that when necessary to ascertain facts not reasonably susceptible of proof under [the rules of evidence in non-jury civil litigation], evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. 98 The Florida Act takes a position between the Federal APA and the RMA. After excluding irrelevant, immaterial, or unduly repetitious evidence, the Florida Act states: [AIll other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. . . .Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. 99 The Federal APA authorizes an agency to take official notice of facts not appearing in evidence in the record, provided that any party, upon timely request, may have an opportunity to show the contrary. 10 0 The RMA permits notice to be taken of "judicially cognizable facts," and of "generally recognized technical or scientific facts within the agency's specialized knowledge," provided that the parties have been afforded an opportunity to contest the material so noticed. 10 1 The Florida APA permits agencies to take official notice, without any apparent limitation, as long as the parties are notified 02 and given an opportunity to examine and contest the material.' The three Acts do not limit the type of evidence that participants may present in rulemaking proceedings. The Federal APA, however, 10 3 limits the agency to considering "the relevant matter presented,' would be a decision based on the record, even though it might not be supported by the evidence. The 1976 amendment did not change the provision that requires the reviewing court to reverse an agency fact that is not supported by substantial evidence, 5 U.S.C. § 706(2)(E) (1970). 98. RMA § 10(1). The RMA requires that a reviewing court reverse an agency decision that is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." RMA § 15(g)(5). 99. FLA. STAT. § 120.58(1)(a) (Harrison Supp. 1976). The Florida APA requires the court to set aside an agency finding of fact that is "not supported by competent substantial evidence in the record." Id. § 120.68(10) (Harrison 1975). 100. 5 U.S.C. § 556(e) (1970). 101. RMA § 10(4). 102. FLA. STAT. § 120.61 (Harrison 1975). 103. 5 U.S.C. § 553(c) (Supp. V 1975).

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and the Florida APA requires the agency to give affected persons an opportunity to present "evidence . . .on all issues under consideration appropriate to inform it of their contentions." 10 4 The Florida APA also states that in rulemaking proceedings, the agency may recognize any material which may be judicially noticed. The agency may also provide that materials so recognized be incorporated into the record of the proceeding, subject to the right of all parties to receive a list of such materials and to have a reasonable opportunity to examine them and offer written comments or rebuttal. 0 5 2. Investigation by decisionmaker 10 7 0 The adjudicative provisions of the Federal APA,1 6 the RMA, and the Florida APA i0 8 give the parties an opportunity to present their cases to the decisionmaker. These statutes, however, do not prohibit the decisionmaker from participating actively in eliciting evidence. Indeed, the spirit of the statutes seems to call for active participation by the decisionmaker if one or both of the parties is unrepresented by counsel, or if other circumstances indicate that the parties cannot be expected to make effective presentations of their own cases. Significant adaptations of the APA are found, for example, in adjudicative hearings conducted by the Social Security Administration, 109 in which the ALJ plays such an active role that the proceedings have b~en characterized as "inquisitorial" rather than adversarial. 110

104. 105.

FLA. STAT. § 120.54(3) (Harrison Supp. 1976). Id. § 120.54(6).

106. 5 U.S.C. § 554(c) (1970). 107. RMA § 9(a). 108. FLA. STAT. § 120.57(1)(b)2 (formal hearing), (2)(a)(2) (Harrison Supp. 1976) (informal hearing). 109. 42 U.S.C. § 405 (1970 & Supp. V 1975). 110. SCHWARTZ, supra note 1, at 252. Professor Schwartz states that: With all its faults, however, the inquisitorial type of procedure developed in SSA hearings may represent a practical method of dealing with many of the problems met with in agencies dispensing mass justice. The great need is to deal efficiently and fairly with a horde of cases, rather than to preserve all the accoutrements of the courtroom. Particularly in a case where a claimant is not represented by counsel,

the active development of the case on both sides by an independent judge may actually be fairer to the claimant than the more traditional adversary procedure. In addition, the elimination of the adversary element makes for greater efficiency;

nothing delays the administrative process more than the "trial by battle" permitted in the more formal type of hearing. Id. at 254.

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MODELS

Recent federal cases have sustained the constitutional validity of the "inquisitorial" processes of the Social Security Administration, 1 1 ' and these processes must therefore be regarded as part of the gloss of the "fair hearing" requirement announced in Goldberg v. Kelly. The Social Security Administration does not have its own counsel opposing the claimant at claims hearings. 112 The claimant is questioned, either by his counsel (if he is accompanined by counsel), or by the ALJ. Further, the ALJ has the duty of examining the agency's file before the hearing to extract those portions that he believes will be relevant at the hearing. At the same time, he must preserve the confidentiality of the remainder of the file." l 3 No matter how active the ALJ may be in adjudicative hearings, the evidence that he elicits must be made part of the record, and the parties must have an op114 portunity to rebut or supplement it. Notice-and-comment rulemaking under the Federal APA is structured upon two assumptions: that the agency has conducted preliminary investigations before publishing notice of proposed rulemaking and that the agency will remain at liberty to conduct its own investigations, in addition to receiving inputs from the public. The "hybrid rulemaking"" 5 decisions of the District of Columbia Circuit Court of Appeals indicate the importance of the materials considered in connection with notice-and-comment rulemaking, since the court may examine this record in order to determine whether the rule was "ar-

111.

E.g., Mathews v. Eldridge, 424 U.S. 319 (1976); Richardson v. Perales, 402 U.S.

389 (1971). See generally Mashaw, supra note 2. 112. SCHWARTZ, supra note 1, at 252. 113. An ALJ gave the following explanation: In 99% of the cases, people come in without any representation. It is my job to represent those people when they come in. It seems strange, but we use the ter-

minology that we "wear three hats." We put on the first hat, and we represent the claimant, we present all the testimony on his behalf, and drag it out of him by questioning. We then represent the government, the Social Security Administration, and search the law-tha's the second hat. We search our minds, and we search whatever other records are available, we search the evidence, and we present the best case that the government has. Then we turn around and put on the third hat, and we decide which evidence is most favorable, and in whose behalf. Rausch v. Gardner, 267 F. Supp. 4, 6 (E.D. Wis. 1967). 114. See notes 180-83 & accompanying text infra. 115. "Agencies are always free to adopt 'hybrid procedures' beyond the minima prescribed by 5 U.S.C. § 553, and commonly do." Natural Res. Def. Council v. United States Nuclear Reg. Comm'n, 547 F.2d 633, 654 n.58 (D.C. Cir. 1976), cert. granted sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 430 U.S. 944 (1977). See generally Williams, "Hybrid Rulemaking" under the Administrative ProcedureAct: A Legal and Empirical Analysis, 42 U. Ci. L. REv. 401 (1975).

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bitrary and capricious.- 11 6 A comparable result is suggested by the Florida APA.11 7 The RMA does not include a provision to this effect. 3.

Evidence presentations

The Federal APA, 1 18 the RMA, 119 and the Florida APA120 give parties the opportunity to present evidence. The Acts deal in varying ways with the question whether the evidence in adjudicative proceedings should be submitted in oral or in written form. The Federal APA permits a party to "present his case or defense by oral or documentary evidence,"' 12 1 except that in "determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the sub12 2 mission of all or part of the evidence in written form."' Under the RMA, any part of the evidence may be received in written form, apparently at the option of the agency, "when a hearing will be expedited and the interests of the parties will not be prejudiced substantially.' 1 2 3 The Florida APA appears to give an option l2 4 to the parties to present written or oral evidence, in both formal 116. See Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976); Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974); Mobil Oil Corp. v. FPC, 483 F.2d 1238 (D.C. Cir. 1973). See also Verkuil, Informal Rulemaking, supra note 1; Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L. REv. 375 (1974). 117. [T~he agency . . . may make such changes in the rules as are supported by

the record of public hearings held on the rule, technical changes which do not affect the substance of the rule, or changes in response to a proposed objection by the committee. Changes supported by the record of a hearing or made in response to a proposed committee objection may include withdrawal of the rule in whole or in part.. " FLA. STAT. § 120.54(12) (Harrison Supp. 1076) (emphasis added). See note 183 infra. 118. 5 U.S.C. § 556(d) (1970). Goldberg v. Kelly guaranteed that the claimant have the opportunity to present oral evidence. 397 U.S. 254, 268-69. See Friendly, supra note 2, at 1281. 119. RMA § 9(c). 120. FLA. STAT. §§ 120.57(1)(a)4 (formal hearing), (2)(a)2 (Harrison Supp, 1976) (informal hearing). 121. 5 U.S.C. § 556(d) (1970). 122. Id. 123. RMA § 10(1). 124. The Florida APA is not completely clear on this point. FLA. STAT. § 120.58(1)(a) (Harrison Supp. 1976), applicable to both formal and informal adjudications, states: "Any part of the evidence may be received in written form." Section 120.57(1)(b)4, applicable only to formal adjudications, gives all parties an opportunity "to present evidence." See. 120.57(2)(a)2, applicable only to informal adjudication, requires the agency to give affected persons or parties an opportunity to present "written or oral evidence ... or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction." Thus the combined effect of the first two provisions appears to the the same as the effect of the third provision on its own, namely, to give an option to the party to present evidence in either oral or written form.

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and informal adjudication. 125 In rulemaking, as in adjudication, all three statutes permit participants to submit evidence, but the statutes vary with regard to the question of written or oral presentations. The Federal APA calls for 1 26 written data, "with or without opportunity for oral presentation.'" The RMA guarantees an oral hearing "if requested by 25 persons, by a governmental subdivision or agency, or by an association having not less than 25 members."' 12 7 The agency must consider all written and 28 oral submissions.' The Florida APA gives affected persons the opportunity to present evidence at the public hearing on proposed rules, "appropriate to inform [the agency] of their contentions.' 1 29 The Model Rules of Procedure adopted under the Florida APA clarify that oral presentations will be received at the public hearing on proposed rulemaking, "within the reasonable conditions and limitations imposed by the agency to avoid duplication, irrelevant comments, unnecessary delay or disruption of the proceeding.' 130 Any person may submit written statements to the agency. 13 1 4.

Cross-examinationand access to adverse evidence

All three statutes imply that, in adjudicatory proceedings, a party must have complete access to all adverse evidence, in order to exercise his right to cross-examine. The Federal APA guarantees that a party may "conduct such cross-examination as may be required for a full and true disclosure of the facts."' 13 2 As interpreted by the Su125. Id. § 120.57(2)(a)2. See note 124 supra. The Federal APA, 5 U.S.C. § 556(d) (1970), and the Florida APA, FLA. STAT. § 120.57(1)(b)4, (2)(a)2 (Harrison Supp. 1976),

expressly or impliedly guarantee the right to present rebuttal evidence. The RMA does not address this matter. 126. 5 U.S.C. § 553(c) (Supp. V 1975). 127. RMA § 3(a)(2). 128. Id. 129. FLA. STAT. § 120.54(3) (Harrison Supp. 1976). 130.

FLA. ADMIN. CODE § 28-3.31(1) (Supp. 56 1975).

131. Id. 132. 5 U.S.C. § 556(d) (1970). Goldberg v. Kelly held that a party must have the right to cross-examine and confront adverse witnesses; the implication is that the party must have access to all adverse evidence. 397 U.S. 254, 269-70. See Friendly, supra note 2, at 1283-86; Verkuil, Informal Adjudication, supra note 1, at 760. Professor Verkuil lists "disclosure to the claimant of opposing evidence" as one of the ten ingredients mandated in Goldberg v. Kelly. Verkuil describes this ingredient as a "discovery device." He reports that Professor Clark Byse took a different view, interpreting this ingredient to be "of no independent value (i.e. as a discovery device) but rather to be the inevitable consequence of providing [oral presentation of arguments, oral presentation of evidence, and cross-examination of adverse witnesses]." A possible reconciliation of the views of

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preme Court, this does not guarantee that adverse evidence will be presented through oral testimony-only that if adverse evidence is presented through oral testimony, the witness may be cross-examined. 13 3 The language of the RMA is similar to the Federal APA on this point.' 3 4 The Florida APA on formal and informal adjudication permits a party to conduct cross-examination when testimony is taken 35 or when documents are made a part of the record.1 The rulemaking provisions of the Federal APA and the RMA do not mention cross-examination.' 36 By contrast, the Florida APA provides the same right to cross-examine in rulemaking proceedings as in 37 adjudication.' 5. Argument Argument is available in all the adjudicative and rulemaking proceedings featured in this analysis. Differences arise with regard to the details. The Federal APA permits parties to submit "supporting reasons" together with proposed findings or exceptions to recommended, initial, or tentative decisions.' 38 The Act does not expressly guarantee argument at earlier stages of the adjudicative process, but argument appears to be available by implication. The RMA guarantees the right to present argument on all issues involved.1' 9 The same language appears in the Florida APA, with regard to formal 40 adjudication only.' In informal adjudication under the Florida Act, the parties have these two scholars is that the "discovery" implicit in Goldberg V. Kelly becomes available only at the time of the evidentiary hearing and not necessarily before. 133. Richardson v. Perales, 402 U.S. 389 (1971). 134. RMA § 10(3). 135. FLA. STAT. § 120.58(1)(e) (Harrison 1975). 136. It has been suggested by some courts that elucidation of certain types of issues in rulemaking proceedings might require particular procedures including cross-examination. See, e.g., International Harvester v. Ruckelshaus, 478 F.2d 615, 631 (D.C. Cir. 1973) ("soft and sensitive subjects and witnesses"). 137. FLA. STAT. § 120.58(1)(e) (Harrison 1975) (conferring the right to cross-examine in an "agency proceeding for a rule or order"). 138. 5 U.S.C. § 557(c) (1970). Goldberg v. Kelly guaranteed the right to oral argument. 397 U.S. 254, 268-69. Friendly has suggested, however, that "whether or not an oral hearing is required should depend on the susceptibility of the particular subject matter to written presentation, on the ability of the complainant to understand the case against him and to present his arguments effectively in written form, and on the administrative costs." Friendly, supra note 2, at 1281. Subsequent federal case law indicates that the right to oral argument will be determined on a case by case basis. See note 126 supra. 139. RMA § 9(c). 140.

FLA. STAT. § 120.57(1)(b)4 (Harrison Supp. 1976).

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the right to present "written or oral evidence . . .. or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.' 14 1 In rulemaking, the three statutes 4 2 or argument'4 permit participants to submit views or arguments in the same form and under the same conditions as evidence may be submitted under the respective statutes. 6.

Assistance of counsel and others

According to the Federal APA, a party in an agency proceeding is entitled to be represented by counsel or to appear in person with or without counsel or other duly qualified representative. A person compelled to appear in person before an agency is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by any other qualified representative.' 4 4 This provision applies to both adjudication and rulemaking. The RMA makes no reference to the assistance of counsel or others, except that the agency is required, upon request, to deliver or mail a copy of the decision or order to each party and to his attorney of record. 1 5 The Florida APA requires the agency to deliver or mail a copy of the final order to each party or to his attorney of record. 14 6 In addition, the Florida APA provides that parties to a formal adjudication shall have the opportunity to be represented by counsel. 147 In informal adjudication, the Florida Act permits evidence or statements to be submitted by affected persons or parties, or by their counsel. 148 The Florida Act makes no mention of counsel in rulemaking proceedings. A few state 149 APA's require agencies to provide interpreters when necessary. 7.

Conversion of pending proceedingfrom one type to another

The Florida APA provides two situations in which a pending proceeding is converted from one type to another. 150 First, during

141. Id. § 120.57(2)(a)2. 142. 5 U.S.C. § 553(c) (Supp. V 1975); RMA § 3(a)(2). 143.

FLA. STAT. § 120.54(3) (Harrison Supp. 1976).

144. 5 U.S.C. § 555(b) (1970). Goldberg v. Kelly guaranteed the party's right to be represented by his own retained counsel. 397 U.S. 254, 270. See Friendly, supra note 2, at 1287-91. 145. RMA § 12. 146. FLA. STAT. § 120.59(4) (Harrison 1975). 147. Id. § 120.57(1)(b)4 (Harrison Supp. 1976). 148. Id. § 120.57(2)(a)2. 149. ARiz. REV. STAT. ANN. § 41-1006 (West 1974); ARK. STAT. ANN. § 5-715 (1976); IND. CODE ANN.

§ 4-22-1-22.5

(Bums 1974); ORE. REV. STAT. § 183A18 (1975).

150. Neither the Federal APA nor the RMA provides for the conversion of a pending

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rulemaking proceedings, a person may timely assert that his substantial interests will be affected in the proceeding. He must affirmatively demonstrate that the notice-and-comment procedures of rulemaking do not provide adequate opportunity to protect those interests.' 5 ' If the agency sustains his contentions, it shall suspend the rulemaking proceeding and convene a separate adjudicatory proceeding under the formal or informal provisions of the Florida APA, depending on whether or not a disputed issue of material fact is involved. Similarly situated persons may be requested to join and participate in the adjudicatory proceeding. After its conclusion, the agency shall resume the rulemaking proceeding. Second, an adjudicatory proceeding that starts under the informal provisions, because it does not involve a disputed issue of material fact, is subject to conversion into a formal 52 adjudication if such an issue emerges during the proceedings.1 D.

Decision

The decisionmaking stage of the agency process can be analyzed in terms of the following elements: (1) decisionmaker; (2) impartiality of decisionmaker; (3) submittals by parties; (4) record; (5) form, findings, and reasons; (6) filing and effective date; and (7) reconsideration. 1. Decisionmaker The Federal APA, the RMA, and the Florida APA on formal adjudication all permit the agency to choose either to conduct its own hearing and render the decision, or to have the hearing conducted by a person other than the agency, such as a hearing examiner or an ALJ, subject to final decisional authority of the agency. 15 3 In the

proceeding from one type to another. Goldberg v. Kelly held, in effect, that if the in-

terests at stake are within the protection of the fourteenth amendment, and if the statutory procedures do not satisfy all the requirements of due process, the proceedings must be converted to the extent needed under the circumstances to comply with the amendment. 151. FLA. STAT. § 120.54(16) (Harrison Supp. 1976). 152. The Florida APA does not establish a mechanism for converting an informal into a formal adjudicative hearing. This omission in the Act is criticized in Levinson, The FloridaAdministrative ProcedureAct: 1974 Revision and 1975 Amendments, 29 U. MIAMI L. REv. 617, 666-68 (1975) [hereinafter cited as Levinson, The FloridaAPA]. 153. 5 U.S.C. § 556(b) (1970); RMA § 11 (by implication); FLA. STAT. § 120.57(1)(a) (Harrison Supp. 1976). As regards informal adjudication, the Florida APA states merely that affected persons or parties may make their presentations to "the agency or hearing officer." These presentations may take the form of either oral or written evidence in opposition to the agency's action, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction. Id. § 120.57(2)(a)2 (Harrison Supp. 177).

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latter situation, the parties are generally entitled to receive a draft decision, and submit comments on the draft to the agency before the agency finalizes its position. The draft decision takes various forms under the respective statutes, but its basic purpose is to give the parties an opportunity to submit comments for the agency's consideration.

154

The Federal APA creates the office of ALJ and guarantees its independence. 155 The Act authorizes the agency to select any one of a number of available decisionmaking structures. 15 6 First, an ALJ may conduct the hearing and make an "initial decision" that is bind157 ing upon the parties unless reviewed and overruled by the agency. Second, the agency itself may conduct the hearing and make the decision. 158 Third, an ALJ may conduct the hearing and make a recommended decision, which is certified to the agency. 159 The parties are not bound by the recommended decision, but by the subsequent action of the agency itself. Fourth, in initial license determinations only, a "responsible employee" of the agency may make a recommended decision, or the agency may issue a "tentative decision" without first having received a recommended decision.' 60 Alternatively, the agency may proceed without either a recommended decision or a tentative decision "in a case in which the agency finds on the record that due and timely execution of its functions imperatively 161 and unavoidably so requires."' The RMA recognizes that a contested case hearing may be conducted either by the agency or, by implication, a hearing examiner. The RMA, however, does not define the status of this office. If the hearing examiner presides, no decision adverse to a party other than the agency shall be made until the examiner, or someone who has read the record, prepares a "proposal for decision."' 162 The proposal for decision, however, is not required under the RMA if a majority of the agency officials who are to render the decision have heard the case or read the record. 163 The RMA does not authorize a hearing 154. 155.

See notes 173-79 & accompanying text infra. 5 U.S.C. §§ 3015, 7521, 5362, 3344, 1305 (1970).

156. 5 U.S.C. § 557(b) (1970). 157. Id.

158. 159. 160. 161.

Id. Id. Id. § 557(b)(1). Id. § 557(b)(2).

162. RMA § 11. The "proposal for decision" under the RMA is comparable to the "recommended decision" under the Federal APA, that is, certified to the agency and

served on the parties for comment, but without binding effect. 163. See COOPER, supra note 10, at 445, 460, explaining the underlying policy, to the

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examiner to make an initial decision comparable to that available under the Federal APA. The Florida APA establishes a statewide organization of hearing examiners, who generally preside over agency hearings.1 64 If a hearing examiner presides at a formal adjudicatory hearing, he renders a "recommended order" comparable to the "proposal for decision" under the RMA. 165 If a hearing examiner does not preside, and if a majority of those who are to render the final order have not heard the case or read the record, the Florida Act, like the RMA, requires that a decision adverse to a party other than the agency itself shall not be made until a "proposed order" has been served on the parties. 166 The Act contains an emergency provision, which appears to permit agencies to 16 accelerate or bypass the normal processes. 7 The three statutes on rulemaking indicate that the agency itself is the decisionmaker in rulemaking proceedings. Presumably, a person other than the agency head may preside over some or all of the public hearings, but the Acts do not provide that the presiding officer issue any initial, recommended, or proposed orders.

2.

Impartialityof decisionmaker

The Federal APA, 1 68 the RMA, 169 and the Florida APA170 all prohibit improper ex parte communications by the decisionmaker. In addition, the Federal APA expresses the requirement that the ALJ act impartially. 17 1 The Florida Act declares that any individual, serveffect that if a majority of the agency members have heard the case or read the record,

they are presumably capable of reaching a decision, without the benefit of the parties' comments on a proposal for decision. 164. FLA. STAT. § 120.65 (Harrison 1975 & Supp. 1976) (creating the Division of Administrative Hearing to employ hearing officers); § 120.57(1)(a) (Harrison Supp. 1976) (requiring a hearing officer assigned by the Division to conduct all formal adjudicative hearings subject to minor exceptions set forth in the section). 165. Id. § 120.57(1)(b)8, 9 (Harrison Supp. 1976). 166. Id. § 120,58(1)(d) (Harrison 1975). The proposed order must be prepared by the individual who conducted the hearing, if available, or by one who has read the record. The "proposed order" is in some respects similar to the "recommended order," and the Florida Act states that no proposed order is needed in hearings in which a recommended order is issued. "'Proposed order' means the advance text, under § 120.58(1)(d), of the order which a collegial agency head plans to enter as its final order. When a hearing officer assigned by the division conducts a hearing, the recommended order is the proposed order." Id. § 120.52(11). 167. Id. § 120.59(3) (Harrison 1975). 168. 5 U.S.C. § 554(d) (1970); 5 U.S.C.A. § 557(d)(1) (West Supp. 1977). 169. RMA § 13. This section precludes litigious facts which have not been placed in the record from reaching the decisionmakers without being placed on the record. It also precludes ex parte discussions of the law with the party or his representative. 170. FLA. STAT. § 120.66 (Harrison 1975 & Supp. 1976). 171. 5 U.S.C. § 556(b) (1970). Goldberg v. Kelly required the decisionmaker to be

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MODELS

ing alone or with others as agency head, shall be disqualified for bias, prejudice, interest, or other causes for which a judge may be 72 recused.' 3.

Submittals by parties The Federal APA entitles parties to a reasonable opportunity to make submittals prior to a recommended, initial, or tenative decision, or before the agency makes a decision upon review of the decision of subordinates. 1 73 These submittals include: proposed findings and conclusions; or exceptions to either tentative agency decisions or to the decisions or recommended decisions of subordinates; and supporting reasons for the proposed findings and conclusions or for the exceptions. 174 The RMA permits agencies to authorize submission of proposed findings of fact. 175 If such submissions are made, the agency's decision includes a ruling on each proposed finding. 17 6 In addition, the RMA affords parties who have been served with a proposal for decision an opportunity to file exceptions and to present briefs and oral argument to the officials who are to render the decision.177 Under the Florida APA on formal adjudication, parties have the opportunity to submit proposed findings of facts and orders to the hearing officer and to file exceptions to any order or to a hearing officer's recommended order. 178 If a proposed order is served on the parties, they have an opportunity to file exceptions and present briefs 79 and oral arguments to those who are to render the decision.' 4.

Record

The Federal APA declares that, in adjudication, "the transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision."' 8 0 This impartial. "Prior involvement in some aspects of the case will not necessarily bar a welfare worker from activity as the decisionmaker. He should not, however, have par-

ticipated in making the determination under review." 297 U.S. 254, 271. See also Friendly, supra note 2, at 1279-80. 172. FLA. STAT. § 120.71(1) (Harrison 1975). 173. 5 U.S.C. § 557(c) (1970). 174. Id. 175. RMA §§ 11, 12. 176. Id. § 11. 177. Id. 178.

FLA. STAT. § 120.57(1)(b)4 (Harrison Supp. 1976).

179. Id. The Florida APA does not provide for submittals for informal adjudication, nor do any of the acts provide for submittals for rulemaking beyond the general opportunity for parties to present their evidence and arguments. 180. 5 U.S.C. § 556(e) (1970). See also note 97 supra. One of the essential ingre-

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record is supplemented by submittals made by the parties; by the ruling on each finding, conclusion, or exception submitted; and by all decisions, including initial, recommended, and tentative decisions. A reviewing court shall review the whole record or those parts of it cited by a party. 18 1 The RMA 182 and Florida APA 183 for formal as well as informal adjudication have similar provisions although with more detailed language. For rulemaking, the Federal APA 184 and the RMA 185 require the agency to consider all relevant matter presented, but neither Act states that these materials are the exclusive basis for decision. The Acts imply that the agency can consider sources outside of as well as within the record.' 86 The Florida Act imposes somewhat greater control over agency sources which are outside the material presented by the parties. 187 If the agency recognizes any material which may be

dients of a "fair hearing" in Goldberg v. Kelly is a decision based "solely on the legal rules and evidence adduced at the hearing." 397 U.S. 254, 271. See also Friendly, supra note 2, at 1282-83. According to one commentator, "[I]f there is one principle that is fundamental in administrative law, it is that of exclusiveness of the record. In any proceeding that is judicial in nature, whether in a court or an agency, the process of decision must be governed by that principle." SCHWARTZ, supra note 1, at 357. 181. 5 U.S.C. § 706 (1970). 182. RMA §§ 9(e), (g), 15(f). Subsection 9(e) defines the record of a contested case as: (1) all pleadings, motions, intermediate rulings; (2) evidence received or considered; (3) a statement of matters officially noted; (4) questions and offers of proof, objections, and rulings thereon; (5) proposed findings and exceptions; (6) any decision, opinion, or report by the officers presiding at the hearing; (7) all staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case. 183. FLA. STAT. § 120.57(1)(b)6, (2)(b) (Harrison Supp. 1976) defines the contents of the record in formal and informal adjudication respectively. Section 120.68(5) (Harrison 1975), states that the record for judicial review of agency adjudication must consist of the record under whichever of the above provisions is applicable, together with the agency's written document expressing the order, and the statement of reasons therefor, if issued. Section 120.68(10) (Harrison 1975) requires the reviewing court to set aside agency findings of fact not supported by competent substantial evidence in the record. 184. 5 U.S.C. § 553(c) (Supp. V 1975). 185. RMA § 3(a)(2). 186. The "hybrid rulemaking" decisions of the District of Columbia Circuit Court of Appeals, however, suggest that the courts will require the rule to be reasonably supported by the record. See note 115 supra. 187. Judicial review of rules must be confined to the record, which consists of the agency's written document expressing its action, the statement of reasons therefor, if issued, and the materials considered by the agency. FLA. STAT. § 120.68(b) (Harrison 1975). Further complications are considered in England and Levinson, Administrative Law, 31 U. MIAMI L. REV. 749, 769 n.108 (1977).

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judicially noticed it must incorporate that material into the record of 18 8 the proceeding.

5. Form, findings, reasons All the statutes featured in this study require that an agency's final action include, in one format or another, the basis underlying its action. In adjudicatory proceedings, the Federal APA requires the decision to be part of the record. 1 89 The decision must include findings and conclusions on all the material issues of fact, law, or discretion presented on the record. 190 The agency also must give a brief explanation of the grounds for a denial, in whole or in part, of any written application, petition, or other request made by an interested person in connection with any agency proceeding. 19 1 The RMA requires a final decision or order adverse to a party in a contested case to be in writing or stated in the record. 19 2 The latter option would be satisfied by an oral ruling made by the presiding officer and transcribed or made available for transcription as part of the record. 19 3 The final decision must include findings of fact and conclusions of law, separately stated. 194 If the findings of fact are set forth in statutory language, they must be accompanied by "a concise and explicit statement of the underlying facts supporting the findings."'19 5 If, in accordance with agency rules, a party submitted proposed findings of fact, the decision must include a ruling upon each proposed finding. 19 6 If, pending proceedings for revocation or other action, the agency orders summary suspension of a license because the public health, safety, or welfare imperatively requires emergency action, the agency must incorporate a finding of the emergency 197 in its order. The provisions on final orders in the Florida APA closely resemble the RMA. 198 In addition, the Florida Act requires the final order to 188. Id. § 120.54(6) (Harrison Supp. 1976). 189. 5 U.S.C. § 557(c) (1970). Goldberg o. Kelly required the agency's decision to include a statement of the reasons for the determination, and an indication of the evidence it relied upon. 397 U.S. 254, 271. See also Friendly, supra note 2, at 1292. 190. 5 U.S.C. § 557(c)(3)(A) (1970). 191. Id. § 555(e). "Except in affirming a prior denial or when the denial is selfexplanatory .... " Id. 192. RMA § 12. 193. Id. § 9(f). 194. Id. § 12. 195. Id. 196. Id. 197. Id. § 14(c). 198. FLA. STAT. § 120.59 (Harrison 1975).

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include a brief statement of the grounds for denying any written application or request filed by a party in connection with the proceeding. 1 99 Further, each agency, upon issuing or denying a license, must state with particularity the grounds or basis for the issuance or denial of the license, except where the issuance is a ministerial act.2 0 0 The Flordia APA provisions on informal adjudication contain an added requirement that the agency provide a written explanation within seven days if the agency overrules the party's objections to the 20 1 agency's action or to its refusal to act. In rulemaking proceedings, the Federal APA requires the rule, as adopted, to incorporate a concise general statement of its basis and purpose.2 0 2 Further, if the agency dispenses with the notice-andcomment process, on the grounds that such process would be "impracticable, unnecessary, or contrary to the public interest," the rule must incorporate the agency's finding to this effect, together with a 20 3 brief statement of its reasons. Under the RMA, if an interested person makes a request either before the adoption of a rule or within thirty days after its adoption, the agency must issue a concise statement of the principal reasons for and against its adoption, and incorporate therein its own reasons for overruling the considerations urged against its adoption. 20 4 If the agency adopts an emergency rule which is effective immediately upon filing because of "imminent peril to the public health, safety, or welfare," the agency's finding and a brief statement of the reasons there20 5 for must be filed with the rule. The Florida APA imposes more elaborate requirements regarding the content of rules. Each rule must be accompanied by "a reference to the specific rulemaking authority pursuant to which the rule was adopted, and to the section or subsection of law being implemented, interpreted, or made specific." 206- The agency must also file with the 199. Id. § 120.59(2). 200. Id. § 120.60(2) (Harrison Supp. 1976). "'License'

means a franchise, permit,

certification, registration, charter, or similar form of authorization required by law, but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial act." Id. § 120.52(6) (Harrison 1975). 201. Id. § 120.57(2)(a)3 (Harrison Supp. 1976). 202. 5 U.S.C. § 553(c) (Supp. V 1975). 203. 5 U.S.C. § 553(b)(3)(B) (1970). 204. RMA § 3(a)(2). 205. Id. § 4(b)(2). 206. FLA. STAT. § 120.54(7) (Harrison Supp. 1976). In language similar to the Florida consitutional requirments regulating the format of statutes, FLA, CONST. art. III, § 6 (1968), the APA provides that: Each rule adopted shall contain only one subject and shall be preceded by a concise statement of the purpose of the rule and reference to the rules repealed or

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Department of State the rule it proposes to adopt, together with "a summary of the rule, a summary of any hearings held on the rule, and a detailed written statement of the facts and circumstances jus20 7 tifying the rule." 6.

Filing, effective date

The Federal APA requires the agency to conclude a matter presented to it "[w]ith due regard for the convenience and necessity of 20 8 the parties or their representatives, and within a reasonable time." Further, "prompt notice" must be given of "the denial, in whole or in part, of a written application, petition, or other request of an in20 9 terested person made in connection with any agency proceeding.When a licensee has made timely and sufficient application either for a renewal of a license or for a new license for a continuing activity in accordance with agency rules, the old license does not expire until the application has been finally determined by the agency.2 1 0 In any proceeding, the agency may postpone the effective date of its action 21 pending judicial review, upon finding that "justice so requires." ' The RMA requires that "[p]arties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record." 21 2 The RMA's protection against license expiration is similar to that in the Federal APA, except that the RMA extends the protection until "the last day for seeking review of the agency order or a later date fixed by order of the reviewing court," in the event that the agency denies a license application or imposes limitations upon a new license.2 1 3 If, based upon its finding of an emergency, the agency orders summary suspension of a license, the agency must "promptly" institute proceedings for revocation or other action. 2 14 In any contested case proceeding, the agency amended, which statement need not be printed in the Florida Administrative Code. No rule shall be amended by reference only. Amendments shall set out the amended rule in full in the same manner as required by the constitution for laws. FLA. STAT. § 120.54(8) (Harrison Supp. 1976). 207. FLA. STAT. § 120.54(11)(b) (Harrison Supp. 1976). 208. 5 U.S.C. § 555(b) (1970). Goldberg v. Kelly did not address the question of filing or effective date. Minimum procedural requirements were imposed partly in the interest of speedy resolution. 397 U.S. 254, 267. 209. 5 U.S.C. § 555(e) (1970). 210. 5 U.S.C. § 558(c) (1970). 211. Id. § 705. 212. RMA § 12. 213. id. § 14(b). 214. Id. § 14(c).

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may grant a stay of enforcement of its decision "upon appropriate terms."215

The Florida APA on formal and informal adjudication requires the 2 16 parties to be notified, either personally or by mail, of final orders. The final order must be rendered within ninety days:2 17 (a) after the conclusion of the hearing if the agency conducts the hearing; 218 or (b) after a recommended order is submitted to the agency and mailed to all parties, if a hearing officer conducts the hearing;219 or (c) after the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing. 220 The ninety day period may be waived or extended with the consent of all parties. The Florida Act authorizes the agency to grant a stay "upon appropriate terms," and the order granting the stay "shall specify the conditions 22 1 upon which the stay ... is granted." The Florida provisions on nonexpiration and summary suspension of licenses 2 22 are similar to those of the RMA. Regarding license applications, the Florida Act requires the agency to notify an applicant if the activity for which he seeks a license is exempt from the licensing requirement. 223 In such cases the agency must return any tendered application fee within thirty days after receipt of the original application, or within ten days after receipt of the timely requested additional information, correction of errors, or omissions. 22 4 In addition, the Florida provisions on informal adjudication require the agency to furnish a written explanation within seven days if the agency overrules a party's objections to the agency's action or refusal to 22 5 act. The rulemaking provision of the Federal APA states that the required publication or service of a proposed rule must generally be made not less than thirty days before its effective date. 226 The RMA 215.

Id. § 15(e).

216. FLA. STAT. § 120.59(4) (Harrison 1975). A copy must be delivered or mailed to each party or his attorney of record (not and his attorney as in the RMA § 12), and this shall be done unless waived under the Florida Act (not upon request as in § 12 of the

RMA). 217. Id. § 120.59(1).

218. Id. § 120.59(1)(a). 219. Id. § 120.59(1)(b). 220. Id. § 120.59(1)(c). 221. 222. 223. 224. 225.

.226.

Id. § 120.68(3) (Harrison Supp. 1976). Id. § 120.60(3), (5) (Harrison 1975). Id. § 120.60(2). Id. Id. § 120.57(2)(a)3 (Harrison Supp. 1976). 5 U.S.C. § 553(d) (1970), except:

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requires each agency to file copies of the proposed rule with the secretary of state, and declares that rules are generally effective twenty days after filing. 22 7 Under the Florida APA, the agency files the rule and supporting materials with the Department of State. The agency must file the rule not less than twenty-one nor more than forty-five days after notice of proposed rulemaking, or not more than ten days after conclusion of the final public hearing if the hearing extends beyond the forty-five days. 228 The proposed rule is "adopted" upon being filed in this manner, and generally becomes "effective" twenty 229 days thereafter. 7.

Reconsideration Although all of the acts in this study contemplate that the agency may be required to reconsider a matter upon remand from a reviewing court, 2 30 none of the acts spell out a procedure for an agency to reconsider its action by rehearing before the initiation of judicial review. 23 1 The Federal APA mentions that a pending application for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. Id. § 553(d)(1)-(3). 227. RMA § 4(b). The twenty day provision applies unless a later date is specified in the rule itself or by statute, or if an earlier date is required by an emergency. 228. FLA. STAT. § 120.54(11)(b) (Harrison Supp. 1976). 229. Id. § 120.54(12). The rule will become effective on a later date if specified in the rule, or on another date required by statute, or earlier if required by an emergency.

Id. § 120.54(9). 230. This is inherent in the notion of judicial review. The provisions on judicial review are discussed at notes 290-312 & accompanying text infra. In addition, the Florida APA describes the process for agency reconsideration of rulemaking if the administrative procedures committee objects to the proposed rule. See notes 284-89 & accompanying text infra. 231. Some state APA's establish a rehearing procedure. A party has the right to rehearing under the following statutes: Amuz. REV. STAT. ANN. § 41-1010(B) (West Supp. 1977); IND. CODE ANN. § 4-22-1-15 (Burns 1974) (contingent on the finding of newly discovered evidence); LA. REv. STAT. ANN. § 49-959 (West Supp. 1977); OKLA. STAT. ANN. tit. 75, § 317 (West 1976); TEx. REv. Civ. STAT. ANN. art. 6252-13a, § 16(e) (Vernon Supp. 1976). Limited rehearing, by way of petitions for reinstatement of license or reduction of penalty after one year, is provided by: ALASKA STAT. § 44.62.550 (1962); CAL. GOV'T CODE § 11522 (West 1966). Agencies are given discretion to grant rehearings by: ALASKA STAT. § 44.62.540 (1962); CAL. GOV'T CODE § 11521 (West 1966); ILL. ANN. STAT. ch. 110, § 264 (SmithHurd Supp. 1977); IOWA CODE ANN. § 17A.16 (West Supp. 1977); N.D. CENT. CODE § 28-32-14 (1974); OR. REV. STAT. § 183.482(6) (1975); TENN. CODE ANN. § 4-520 (Supp. 1976).

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any form of reconsideration shall not deprive an agency order of finality for purposes of judicial review. 23 2 The RMA takes a different approach; the period for seeking judicial review starts to run from the date the final decision is mailed or, "if a rehearing is requested, within [thirty] days after the decision thereon." 23 3 The Florida APA does not mention agency rehearing of adjudicatory matters. E.

Publicity

The publicity of administrative proceedings may be considered from three perspectives: (1) open proceedings; (2) public access; and (3) publication. 1. Open proceedings Neither the Federal APA, the RMA, nor the Florida APA contains a general requirement that all administrative proceedings be open to public observation. The Florida APA contains some brief references to public proceedings in specific situations. First, the Act requires the Administration Commission to hold a "public hearing" in connec234 tion with agency applications for exemption from the Florida APA. Second, the Act uses the term "public hearing" in some of its provisions regarding notice-and-comment rulemaking. 23 5 The implication that rulemaking proceedings must be conducted publicly is made express in the Florida Model Rules of Procedure, which require the agency, upon request, to conduct rulemaking by "a public hearing for presentation of oral statements. "236

232.

5 U.S.C. § 704 (1970). A final order is not necessarily the very last order in an

agency proceeding nor is it final just because the agency might label it so. An agency order is final for the purpose of judicial review when it imposes an obligation, denies a right, or fixes some legal relationship. Fidelity Television, Inc. v. FCC, 502 F.2d 443 (D.C. Cir. 1974). Under the APA, finality does not depend on whether or not a petition for reconsideration has been filed with the agency. But when such a petition is filed, judicial review may be properly deferred until the petition has been acted on. Tallman v. Udall, 324 F.2d 411, 416 (D.C. Cir. 1963), rev'd on other grounds, 380 U.S. 1 (1965). 233. RMA § 15(b). 234. FLA. STAT. § 120.63(2)(a) (Harrison Supp. 1976). See notes 274-77 & accompanying text infra. 235. Id. § 120.54(11)(b) requires the agency to file certain materials with the Department of State not more than ten days after conclusion of the "final public hearing" if the hearing extends more than 45 days after the agency gave public notice of proposed rulemaking. The section of the Florida APA dealing with transition from prior law to the 1974 revision of the APA declares all prior rules void unless "adopted following a public hearing as provided by statute." Id. § 120.72(4)(a) (Harrison 1975). 236. FLA. ADMIN. CODE § 20-3.31(1) (Supp. 56 1975).

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Some, but not all, agency proceedings are affected by "sunshine" laws. The Government in the Sunshine Act, enacted in 1976 and codified as an amendment to the Federal APA, 23 7 provides that "every portion of every meeting2 38 of an agency 23 9 shall be open to public observation,"2 40 subject to a number of exceptions spelled out in the statute. 2 4 ' One of the exceptions states that formal adjudication under the Federal APA is not subject to the open meeting requirement.2 42 Neither the RMA nor the Florida APA includes a "sun237. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1976) (adding 5 U.S.C. § 552b and amending 5 U.S.C. §§ 551, 556, 557 (1970)). 238. "[T~he term 'meeting' means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business .... " Id., 90 Stat. 1241 (adding 5 U.S.C. § 552b(a)(2)). 239. [A~ny agency, as defined in [the Freedom of Information Act, 5 U.S.C. § 552a(e) (Supp. V 1975] headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency. Id. 90 Stat. 1241 (adding 5 U.S.C. § 552b(a)(1)). 240. Id. 90 Stat. 1241 (adding 5 U.S.C. § 552b(b)). 241. The exceptions listed in the Act are, in summary: (1) matters properly classified pursuant to criteria established by Executive Order, to be kept secret in the interests of national defense or foreign policy; (2) internal personnel rules and practices of an agency; (3) matters specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information; (5) accusation of crime, or formal censure; (6) information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only if one of six criteria is satisfied; (8) reports of agencies that regulate or supervise financial institutions; (9) information which, if prematurely disclosed, would be likely to lead to financial speculation, or significantly endanger the stability of any financial institution; or "significantly frustrate implementation of a proposed agency action;" or (10) specifically concerning the agency's issuance of a subpoena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing. Id. 90 Stat. 1241-42 (adding 5 U.S.C. § 552b(c)(1)-(10)). Regarding the last exception, see text accompanying note 242 infra. These exceptions to the general rule of openness are not mandatory. Subsection (c) also provides that if the public interest requires otherwise, a meeting falling within one of the exceptions shall not be closed. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1946) (adding 5 U.S.C. § 552b(c)). 242. See note 241 supra. The open meeting requirement does not apply to formal adjudication, but does apply to rulemaking and agency meetings for other non-adjudicatory purposes. However, the Sunshine Act provides public access to the record or minutes of closed meetings.

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shine" provision, but Florida and all other states have enacted "sun243 shine" laws, codified with or separately from the state APA's. The Florida Sunshine Law declares that except as provided by the Florida Constitution, when any board or commission of any state agency holds meetings at which official acts are to be taken, the sessions must be open to the public. 2 44 The Act further provides that no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such meeting. 245 While this section appears to apply to rulemaking, it has not been held to apply to quasi-judicial deliberations such as those following adjudicatory 246 proceedings. 2.

Public access The elaborate procedures in the Federal APA allow the general public to gain access to federal agency records, including the records of adjudication and rulemaking. 247 The Act requires each agency to make available for public inspection and copying all final opinions, including concurring and dissenting opinions, and a record of the final votes of each agency member; orders made in the adjudication of cases; policy statements and interpretations (unless published in the Federal Register); and administrative staff manuals and staff instructions that affect a member of the public. 248 As one mechanism to 243. Forty-nine states and the District of Columbia had enacted sunshine statutes by 1976. Comment, Government in the Sunshine Act: Opening Federal Meetings, 26 ANI. U.L. REv. 154 n.3 (1976). An open meeting law for the fiftieth state, New York, became effective January 1, 1977. N.Y. PUB. OFF. LAW (McKinney Supp. 1977). The Tennessee sunshine law is codified at TENN. CODE ANN. §§ 8-4401-4406 (Cum. Supp. 1976). The present author has taken the view that the Tennessee statute "means that parties, as well as members of the public, have a right to be present during all stages of contested case proceedings, including the deliberations among members of the agency," although the rules prepared by the Administrative Procedures Division provide for agency deliberations to take place in executive session. Levinson, Contested Cases under the Tennessee Uniform Administrative Procedures Act, 6 MEM. ST. U.L. REV. 215, 234 (1976). 244. The Florida sunshine law is codified at FLA. STAT. § 286.011 (Harrison 1975). 245. Id. 246. In State Dep't of Pollution Control v. State Career Serv. Comm'n, 320 So. 2d 846, 848-49 (1st Dist. Ct. App. Fla. 1975), the court held that the Career Service Commission's deliberations following an adjudicatory hearing "in the sunshine" are "quasijudicial" and, therefore, are not subject to the sunshine law. 247. 5 U.S.C. § 552(a)(2) (Supp. V 1975). Public access was not an issue in Goldberg v. Kelly, but the case did imply that parties have the right to have access to adverse evidence. The case did not address the right of the public to gain access to the agency proceedings. For a discussion of the parties' access, see note 132 supra. 248. 5 U.S.C. § 552(a)(2) (Supp. V 1975). To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details, but

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enforce the requirement of public access to these materials and to their indexes, the Act provides that a final order, opinion, or statement of policy which affects a member of the public may be used or cited by the agency only if "it has been indexed and either made available or published ... ; or the party has actual and timely notice of the terms thereof."24 9 In addition, the Act contains other enforcement measures, including suits to enjoin agencies from withholding records and to compel the production of records improperly 250 withheld. The Government in the Sunshine Act requires each agency to "maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting," that is closed to the public in accordance with the exceptions listed in the Act. 2 51 With regard to some categories of closed meetings, however, the agency is required to provide a transcript, a recording, or a set of minutes. 252 These minutes must fully and clearly describe all matters discussed, and they must also provide a full and 253 accurate summary of any actions taken, and the reasons therefor. The description must include each of the views expressed on any item, and the record of any rollcall vote reflecting the vote of each member on the question. All documents considered in connection 2 54 with any action shall be identified in such minutes. The Act includes a broad provision for public access to these records. 2 55 The agency shall retain its transcript, minutes, or elecit shall make a written explanation to justify the deletion. Each agency must also maintain, and make available for public inspection and copying, current indexes of the materials mentioned in the text. Id. 249. Id. 250. Id. § 552(a)(4)(B). 251. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1244 (1976) (adding 5 U.S.C. § 552b(f)(1)). The exceptions listed in the Act are summarized in note 241 supra. 252. Id. 253. Id. 254. Id. 255. The agency shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording, or minutes . . .of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c). Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription. Id. § 552b(f)(2). Subsection 552b(c), summarized in note 241 supra, contains the exceptions to the Act. The effect of these provisions appears to be that the public will not

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tronic recording for at least two years after the meeting, or for one year after the conclusion of any agency proceeding with respect to which the meeting was held, whichever is later.2 5 6 The Federal APA 2 57 requires rules to be published in the FederalRegister. The RMA requires each agency to "make available for public inspection all rules and other written statements of policy or interpretations," and "all final orders, decisions, and opinions." 2 58 No rule, order, or decision is valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been made available for public inspection. This provision, however, is not applicable in favor of any person or party who has actual knowledge of the rule, order, or decision.2 59 In contrast to the federal provisions, the RMA does not require the preparation of an index of decisions, nor does it require the deletion of material to prevent invasions of personal privacy. Separate state statutes on public records or privacy may deal with the latter point. The Florida APA is similar to the RMA, but the Florida Act does require the preparation of an index of all orders and rules.2 60 In addition, the Florida Act requires the agency to make the designated materials available for "public inspec261 tion and copying, at no more than cost." 3.

Publication

According to the Federal APA, each agency must separately publish statements and descriptions of its organization, rules, and procedures in the Federal Register.2 62 If the agency fails to publish a mathave access to the record or minutes of agency meetings in connection with formal adjudication. Access to agency files maintained on individuals is also subject to the privacy provisions of 5 U.S.C. § 552a (Supp. V 1975). See generally Hanus & Relyea, A Policy Assessment of the Privacy Act of 1974, 25 AM. U.L. REv. 555 (1976). 256. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1244 (1976) (adding 5 U.S.C. § 552b(f)(2)). 257. See notes 262-64 & accompanying text infra. 258. RMA § 2(a).

259. Id. § 2(b). 260. FLA. STAT. § 120.53(2)(c) (Harrison 1975). 261. Id. § 120.53(3). 262. 5 U.S.C. § 552(a)(1) (1970). Publication was not an issue in Goldberg v. Kelly. Parties, however, would appear to have no more right to insist on publication of the decision in their case, than to insist upon having the proceedings in their case open to public observation. Different considerations arise with regard to publication of legal and procedural standards before such standards are applied in specific cases. See note 334 infra. In addition to the Federal APA, the Federal Register Act, 44 U.S.C. § 1510 (1970), provides for the periodic compilation, in the Code of Federal Regulations, of selected items that have been published in the Federal Register. The formal actions of many federal agencies are published in volumes resembling the reports of appellate courts.

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ter that should have been published in the Federal Register, a person may not in any manner be "required to resort to, or be adversely affected by" such a matter, except to the extent that the person has actual and timely notice of the terms thereof.2 63 In addition, each agency must publish the index of its materials at least once each quarter, unless the agency determines that publication would be unnecessary or impracticable. In that case the agency must provide copies of the index at a cost not to exceed the direct cost of du2 64 plication. The RMA requires the secretary of state to compile, index, and publish all effective rules, a supplementation or revision as often as necessary, and a monthly bulletin setting forth the text of all new rules. 265 The secretary of state may omit the publication of any rule which would be unduly cumbersome, expensive, or otherwise inexpedient, if the rule in printed or processed form is made available on application to the adopting agency, and if the bulletin or compilation contains a notice stating the general subject matter of the omitted rule and stating how a copy 266 thereof may be obtained. Under the Florida APA, the Department of State must publish a compilation, entitled "Florida Administrative Code," containing all rules adopted by each agency.2 67 The Code must cite the specific rulemaking authority pursuant to which each rule was adopted, and contain complete indexes to all rules found in the Code.2 68 Supplementation must be made as often as practicable, but at least monthly.2 69 A compilation of, and index to, all rules omitted from the

263.

5 U.S.C. § 552(a)(1) (1970); Lewis v. Weinberger, 415 F. Supp. 653 (D.N.M.

1976) (the policy of the Indian Health Service which authorized denial of contract health care to off-reservation Indians was held to have no effect because of lack of publication in the Federal Register, and administrative actions taken pursuant to the unpublished policy were held void with respect to persons adversely affected by them); Northern Cal. Power Agency v. Morton, 396 F. Supp. 1187 (D.D.C. 1975), aff'd, 539 F.2d 243 (D.C. Cir. 1976) (rate increases promulgated by the Department of Interior were set aside because the Bureau of Reclamation failed to publish any description of its ratemaking procedures, and informal procedures which were outlined to plaintiffs were inadequate to constitute actual notice). 264. 5 U.S.C. § 552(a)(2)(C) (Supp. V 1975). 265. RMA § 5(a), (b). 266. Id. § 5(c). 267. FLA. STAT. § 120.55(1)(b) (Harrison Supp. 1975). General rules applicable to only one school district, community college district, or to the Florida School for the Deaf and Blind are not to be published in the code. Id. 268.

Id.

269. Id.

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Code pursuant to the exceptions must be published at least annually. 2 70 In addition, the Department of State must publish the Florida Administrative Weekly, containing a summary of and an index to all rules filed during the preceding week, and numerous other matters dealing with proposed rulemaking and other agency 27 1 functions. F. Review Agency action may be subjected to review by (1) executive or administrative officials, (2) the legislature or its committees, or (3) the courts. 1. Executive/administrativereview The Florida APA establishes a procedure, whereby any "substantially affected person" may seek an administrative determination of the validity of a proposed rule while rulemaking proceedings are pending, or of an existing rule after it has been adopted. 2 72 The determination must be made by a hearing officer, who conducts an adjudicatory hearing. It appears that the hearing should be conducted in accordance with the "formal" adjudicative proceedings if it involves a disputed question of material fact, or the "informal" adjudicative proceedings if no such question is involved. The agency whose rule or proposed rule is being attacked will be the named respondent. Other substantially affected persons may join the proceedings as parties or intervenors on appropriate terms, provided that their intervention will not unduly delay the proceedings. The hearing examiner may declare a rule or a proposed rule invalid on the sole ground that it is "an invalid exercise of delegated authority." The hearing examiner's decision is "final agency action" directly reviewable by the courts. The failure to proceed under this provision, however, does 273 not constitute failure to exhaust administrative remedies. The Florida Act also empowers the Administration Commission to exempt any process or proceeding from one or more requirements of the APA. 274 Perhaps these exemption proceedings should not be regarded as "executive or administrative review," but they are noted under this heading because they illustrate the supervisory role of an 270. Id. 271. Id. § 120.55(1)(c) (Harrison 1975 & Supp. 1976). 272. Id. § 120.54(4)(a) (Harrison Supp. 1976) (determination of validity of a proposed rule); 120.56 (determination of validity of an existing rule). 273. See FLA. STAT. § 120.57 (Harrison Supp. 1976). 274. Id. § 120.63 (Harrison 1975).

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executive/administrative agency over the proceedings of other agencies. The Commission must hold a public hearing, after giving public notice. 275 The Commission may grant an exemption, but only for a period which terminates ninety days after final adjournment of the next regular legislative session. 276 The Commission may not confer any exemption until it establishes "alternative procedures to achieve the agency's purpose which shall be consistent, insofar as possible, with the intent and purpose of the act."2 77 The Florida APA confers another type of supervisory authority upon the Administration Commission. The Commission is required to promulgate one or more sets of model rules of procedure, which shall be the rules of procedure of each agency, to the extent the agency does not adopt its own specific rule of procedure on any particular 2 78 procedural subject. With the exception of the Florida procedures noted above, none of the statutes featured in this study establishes a system under which other executive or administrative officials review agency actions. The Federal APA recognizes the possibility of review by a higher level agency, providing that the first agency's action is final, for purposes of judicial review, "whether or not there has been presented or determined an application for . . . an appeal to superior agency authority. "279 The RMA makes judicial review of contested cases available to "[a] person who has exhausted all administrative remedies available within the agency ...... 280 The Florida APA does not contain any similar language. Despite the silence of the APA's, states have passed other 275. 276.

Id. § 120.63( 2 )(a) (Harrison Supp. 1976). Id. § 120.63(2)(b) (Harrison 1975). Exemption from this provision can be based

on any of the following grounds: (a) when compliance with the APA would conflict with federal law; (b) in order to permit persons in the state to receive federal tax benefits or funds; or (c) when conformity with the APA "would be so inconvenient or impracticable as to defeat the purpose of the agency proceeding involved or the purpose of this act and would not be in the public interest in light of the nature of the intended action and the enabling act or other laws affecting the agency." Id. 277. Id. § 120.63(2) (Harrison Supp. 1976). 278. Id. § 120.54(10). Agencies may adopt procedural rules differing from the model rules only with permission of the Administrative Commission, which may only be granted in limited situations. 279. 5 U.S.C. § 704 (1970). Goldberg v. Kelly did not make an issue of administrative review, but the Court noted that if only the minimal requirements announced in that case were made available before termination of welfare benefits, the recipient would be entitled to a full-scale administrative hearing after termination; alternatively, the agency could, if it wished, provide the full-scale hearing before termination, thereby avoiding the need for a separate hearing after termination. 397 U.S. 254, 266-67. 280. RMA § 15(a).

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statutes which establish systems in which the "most complex" proceeding of an agency is subject to review, either at a higher level within the agency, or by another agency that has superior power. 281 2. Legislative review Legislatures exercise ultimate control over all administrative agencies, except for those agencies that derive their powers directly from the constitution. 2 82 Various mechanisms have been established through 28 3 which the legislative power is deployed. 281. See generally Zamir, Administrative Control of Administrative Action, 57 CALIF. L. REV. 866 (1969); Zamir, Administrative Control of Adminstrative Action: The

Exceptions, 51 N.Y.U.L. REv. 587 (1976). Some APA's make agency rules subject to the approval of the Governor: HAW. REV. STAT. § 91-3(c) (1968); IND. CODE ANN. § 4-22-2-5 (Burns Supp. 1977) (after submission to attorney general); NEB. REV. STAT. § 84-908 (1976). 282. Whitehead v. Rogers, 223 So. 2d 330 (Fla. 1969) presents an example of an administrative agency created by the Florida Constitution and deriving powers from the constitution. Defendant was arrested while hunting mourning doves on a Sunday, and was charged with the misdemeanor of discharging firearms on Sunday. His defense was that the Game and Fresh Water Commission, an agency created by the constitution, had promulgated a rule setting the dates for open season on hunting mourning doves and that the Sunday in question was within the open season. Defendant prevailed. The court held that the Commission's rule superseded inconsistent provisions of statutes. 283. W. GELLHORN & C. BYSE, ADMINISTRATIVE LAW 54-127 (6th ed. 1974). The authors discuss delegation and other legislative controls, of which they give the following "partial list:" appropriations; standing committees; watchdog committees; investigations; intercession in pending matters; participation in the appointment process; laying before the legislature for approval or disapproval; and the legislative veto. Id. at 58-108. See H. LINDE & G. BUNN, LEGISLATIVE AND ADMINISTRATIVE PROCESSES 519-634

(1976); Keeffe, The Legislative Veto: Now You See It, Now You Don't, 63 A.B.A.J. 1296, 1474 (1977). Some states, like Florida, confer advisory functions upon the legislative oversight committee: ALASKA STAT. § 24.20.460 (1962); ARK. STAT. ANN. § 4-619 (1976); DEL. CODE ANN. tit 29, § 6455 (Michie Supp. 1976); FLA. STAT. ANN. §§ 11.61, 120.54 (Harrison Supp. 1976); IDAHO CODE § 67-5218 (Supp. 1977); IOWA CODE ANN. §§ 17A.4(4), 17A.8(8) (West Supp. 1977); KAN. STAT. ANN. §§ 46-1202, 77-426 (Supp. 1976); KY. REV. STAT. §§ 7.090.120, 7.310, 7.320, 13.087, 13.090 (1971 & Supp. 1977); LA. REV. STAT. ANN. § 49.968 (West Supp. 1977); MD. ANN. CODE art. 40, § 40A (Supp. 1977); MONT. REV. CODES ANN. § 82-4203.5 (Supp. 1977); NEB. REv. STAT. §§ 84-90, 84-908.01 (1976); OR. REv. STAT. § 171.713 (1975); VT. STAT. ANN. tit. 3, §§ 817-820 (Supp. 1977); WASH. REv. CODE ANN. §§ 34.04.160, 44.24.010-.070 (West 1970). Other states, however, authorize the legislature or i~s committee to suspend or annul a rule. Suspension by legislative committee is provided by: CONN. GEN. STAT. §§ 4170-171 (1977); MICH. COMP. LAwS ANN. §§ 24.235-.252 (West Cum. Supp. 1977); MINN. STAT. ANN. § 3.965(2) (West 1977); TENN. CODE ANN. § 4-535 (Supp. 1976); W. VA. CODE §§ 29A-3-11 to 13 (1976); WIS. STAT. ANN. §§ 13.56-,565, 227.018 (West Supp. 1977). Disapproval of an agency rule by either house of the legislature is provided by: OKLA.STAT. ANN. tit. 75, § 308(d) (West 1976). Annulment of an agency rule by concurrent resolution of both houses of the legis-

1977]

MODELS

The Florida Act creates the Administrative Procedures Committee, consisting of three members of each house of the legislature.2 84 This Committee must examine each proposed rule, and it also may examine any existing rule. The Committee determines (a) whether the rule or proposed rule is within the statutory authority upon which it is based, (b) whether the rule or proposed rule is in proper form, and 28 5 (c) whether adequate notice was given prior to adoption. If the Committee objects to a rule or proposed rule, it shall so certify to the agency whose rule or proposed rule has been examined. Within thirty days of the receipt of the Committee's objection, if the agency is headed by an individual, or within forty-five days, if the agency is headed by a collegial body, the agency shall react to the Committee's objection in one of the following ways: if the Committee objects to a proposed rule, the agency shall modify the rule to meet the Committee's objection, withdraw the rule in its entirety, or refuse to modify or withdraw the rule.2 86 If the Committee objects to an existing rule, the agency shall notify the Committee of its intention to initiate rulemaking proceedings to amend or to repeal the 28 7 rule, or of its refusal to initiate such proceedings. The Committee's function is only advisory. If the agency refuses to modify or withdraw a proposed rule, or to amend or repeal an existing rule, the Committee cannot compel the agency to take such action, nor can the Committee itself declare a rule or a proposed rule invalid. 28 8 If the agency refuses to conform to the Committee's objections, however, these objections are filed with the Department of State, and must be published in full in the Florida Administrative Weekly, and noted by reference in the Florida Administrative Code 28 9 as part of the history of the rule. 3. Judicialreview The Federal APA has a single chapter on judicial review of "agency action," defined as "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure lature is provided by: ALASKA STAT. § 44.62.320 (1967); AIuz. § 41-511.05(8) (West Supp. 1977) (state parks board only). 284. FLA. STAT. § 11.60 (Harrison 1976). 285. Id. § 120.545 (Harrison Supp. 1976).

286. Id. § 120.545(2)(a). 287. Id. § 120.545(2)(b). 288. Id. § 120.545(2)(b) 3 (by implication). 289. Id. § 120.545(8).

REV.

STAT. ANN.

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to act." 290 This definition extends to formal adjudication as well as rulemaking and informal adjudication. The APA declares judicial review to be available to "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute," 2 91 but the Act contains some important qualifications on this right to judicial review. First, the Act applies only to the extent that statutes do not preclude judicial review. 2 92 Second, certain agencies and functions are expressly excluded from the judicial review chapter of the APA. 2 93 Third, the Act states that "[aigency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court is subject to judicial review." 294 Fourth, the form of proceeding for judicial review under the APA is "the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action .... -295 Not surprisingly, lower federal courts have rendered conflicting interpretations. 29 6 In three decisions, the Supreme Court implied that the APA was an independent grant of subject-matter jurisdiction for federal court review of agency action. 29 7 But recently, in Califano v. Sanders,2 98 the Court held that "the better view is that the APA is not to be interpreted as an implied grant of subject-matter jurisdic-

290. Judicial review is provided by 5 U.S.C. §§ 701-706 (1970). Section 701(b)(2) incorporates, for the purposes of these sections, the same definitions of "person," "rule,"

"order," "license," "sanction," "relief," and "agency action" as are given in the definitional section of the APA, 5 U.S.C. § 551 (1970). Goldberg v. Kelly did not make an issue of the availability or type of judicial review. The Court noted that review of the agency's final decision was already available under New York's article 78, N.Y. Civ. PBAC. LAw § 7805 (McKinney 1974). 397 U.S. 254, 260-62. That provision would also authorize a judicial stay pending final outcome of the proceeding. Thus, the Supreme Court did not need to address the question whether the availability of judicial review is an essential ingredient of the Kelly procedure. 291. 5 U.S.C. § 702 (1970). 292. Id. § 701(a)(1). 293. Id. § 701(b)(1). 294. Id. § 704. 295. Id. § 703. 296. The conflict among federal circuits is noted, with citations to cases, in Califano v. Sanders, 430 U.S. 99, 104 n.4 (1977). 297. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967); Rusk v. Cort, 369 U.S. 367, 372 (1962), all cited in Califano v. Sanders as the three decisions of the Court that "arguably have assumed, with little discussion, that the APA is an independent grant of subject-matter jurisdiction." 430 U.S. at 105. 298. 430 U.S. at 105.

MODELS

1977]

tion to review agency actions." 299 The Court noted that its decision was influenced significantly by legislation enacted in October 1976, eliminating the requirement of a specific amount-in-controversy as a prerequisite for suits brought against the United States, its agencies, or officers or employees in their official capacities. 30 0 The Court reasoned that Congress must have assumed that the new legislation was needed in order to confer jurisdiction in situations where jurisdiction did not already exist, the implication being that neither the APA nor any other statute in effect before October 1976 was a general grant of jurisdiction for judicial review of agency action. The RMA has separate provisions dealing, respectively, with the judicial review of rules 30 ' and of contested case adjudications.3 0 2 The validity or applicability of a rule may be determined in a declaratory judgment action, upon the allegation that the rule, or its threatened application, "interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff."30 3 In contested cases, [a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision .

.

. is enti-

tled to judicial review under this Act. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law.30 4 The RMA contains almost no further provisions on the declaratory proceeding regarding rules, but does contain details regarding the scope of review and other aspects arising on judicial review of con30 5 tested cases. The Florida APA expressly preserves the jurisdiction of the circuit courts (the trial courts of general jurisdiction) under the Declaratory Judgment Act.30 6 In addition, the Florida APA contains a single section on judicial review, stating that "a party who is adversely affected by final agency action is entitled to judicial review."3 0 7 All proceedings must be instituted by filing a "petition for review" in the District 299. Id. at 105. 300. Act of Oct. 21, 1976, Pub. L. No. 94-574, § 2, 90 Stat. 2721 (amending 28 U.S.C. § 1331(a) (1970)). 301. RMA § 7.

302. Id. § 15(a). 303. Id. § 7. 304.

Id. § 15(a).

305. Id. § 15. 306. FLA. STAT. § 120.73 (Harrison Supp. 1976). 307. Id. § 120.68(1) (Harrison 1975).

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Court of Appeal (the intermediate appellate court), except in matters 30 8 for which judicial review in the Supreme Court is provided by law. The APA contains detailed guidelines concerning the scope of review 30 9 and other matters arising on judicial review of agency action. In addition, the Florida Act establishes a procedure for the enforcement of agency action. Except as otherwise provided by statute, any agency may seek enforcement of its action by filing a petition for enforcement in the circuit court.3 1 0 If the agency has not filed, or is not diligently prosecuting its own petition for enforcement, any "substantially interested person" who is a resident of the state may file a petition for enforcement, but only if he has waited at least sixty days after giving notice of the alleged violation to the agency head, the attorney general, and the alleged violator. 3 1 ' If one or more petitions for enforcement are pending in the circuit court while a petition for review of agency action is pending in the district court of appeal, the latter court may order all litigation transferred to and consolidated in one court.

3 12

III. FREE-FORM PROCEEDINGS As indicated in the introduction to this article, free-form agency activities need not conform to any particular procedures. Even 308. Id. § 120.68(2). Review proceedings must be conducted in accordance with the Florida Appellate Rules. Only the Supreme Court has authority, under the state constitution, to promulgate such rules, and the current version of the Appellate Rules was adopted before enactment of the 1974 revision of the APA. See England & Levinson, Administrative Law, 31 U. MIAiM L. REv. 749, 775 (1977). Case law, however, has developed some temporary adaptations of the old Appellate Rules, so as to harmonize them with the revised APA. In Yamaha International Corp. v. Ehrman, 318 So.2d 196 (1st Dist. Fla. 1975), the court announced that the Florida Appellate Rules would be considered as modified by the 1974 APA. 309. FLA. STAT. § 120.68 (Harrison 1975 & Supp. 1976). 310. Id. § 120.69 (Harrison 1975). 311. Id. 312. Id. § 120.69(1)(b). The Florida APA contains other provisions to avoid multiplicity of enforcement proceedings, and it specifies the defenses available in enforcement actions: In any enforcement proceeding the respondent may assert as a defense the invalidity of any relevant statute, the inapplicability of the administrative determination to respondent, compliance by the respondent, the inappropriateness of the remedy sought by the agency, or any combination of the foregoing. In addition, if the petition for enforcement is filed during the time within which the respondent could petition for judicial review of the agency action, the respondent may assert the invalidity of the agency action.

Id. § 120.69(5). The effect of the latter sentence is that the respondent is deemed to have waived the defense of invalidity of the agency action if he fails to initiate proceedings for review during the time available for filing such proceedings.

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MODELS

though a free-form activity gives the agency complete procedural discretion, the agency, nevertheless, is subject to important controls with regard to the end result it reaches on the merits in free-form activities. The trend of the American legal system in recent decades has been to narrow the range of functions in which agencies enjoy discretion to conduct free-form decisionmaking activities. This trend has progressed to the point where the free-form activity may be regarded as an endangered species, and opinions differ as to the desirability of preserving it from extinction. A.

An Endangered Species

Free-form decisionmaking activity has come under assault from a 3 13 number of sources. Case law, exemplified by Goldberg v. Kelly, has imposed procedural standards on a wide range of agency activities. No doubt many of these activities were semi-formal even before that decision. In fact, this was the situation in New York prior to the Supreme Court's determination in Goldberg v. Kelly that the state's pretermination procedure was inadequate.3 14 In this regard, although the Court imposed more elaborate requirements than had existed before, the original agency activity was left essentially where it previously had been-in the semi-formal category. In other situations, Goldberg v. Kelly and similar cases may have imposed procedural requirements in situations where none previously existed, thereby transforming the activity from free-form to semi-formal. 3 15 The state statute books contain numerous special purpose procedural statutes, relating to specific agencies or functions. An increasing number of states have enacted APA's; most of the statutes include the requirement that agencies promulgate rules setting forth their formal and informal procedures. 3 16 To the extent that agencies comply with the requirements to promulgate and publish procedural rules, the procedures that previously have been free-form become semi-formal. A trend away from uniformity may be developing in federal law, as Congress continues to enact special purpose procedural statutes for many agencies and functions. Some observers contend that the effective scope of the Federal APA has been reduced drastically. 317 At 313. 397 U.S. 254 (1970). 314. Id. at 258-60. 315. See notes 9-10 & accompanying text supra. 316. See COOPER, supra note 10, at 167. 317. The author has heard this observation from a number of lawyers in Washington. The observation can be supported by a number of comments: With regard to rulemaking

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both the federal and state levels, the great volume of statutory and rulemaking acitivity with regard to agency procedures can be viewed as part of the movement away from free-form and toward semi-formal or formal processes. The only exceptions to the movement away from free-form activity at both the federal and the state level are the activities that the legislature is unable to control, such as the functions of the executive in the exercise of his constitutional powers, 31 8 and the activities that the legislature has chosen not to control, generally including the functions of local governments and public corporations. APA's have only limited impact on the chief executive. The Federal APA does not exclude the office of the President from its coverage, but it does exclude a number of presidential functions. For example, the rulemaking provisions are declared inapplicable to "a military or foreign affairs function of the United States." 3 19 It has been argued that Congress could, if it wanted to, impose procedural requirements upon the President with regard to the exercise of these or any other of the President's constitutional functions, as long as the required procedures would not interfere unreasonably with the Pres3 20 ident's capacity to carry out his responsibilities. procedures, United States v. Florida East Coast Ry. Co., 410 U.S. 224 (1973), interprets the APA in pari materia with the relevant provision of the Interstate Commerce Act, in order to determine the type of rulemaking procedure needed. Thus the notice-and-

comment procedure of the APA provides a "minimal" model that may be supplemented by the procedures required by statutes pertaining to the particular agency function involved. Friendly discusses the consequences, especially in light of some post-Florida East Coast decisions by the District of Columbia Court of Appeals. Friendly, supra note 2, at 1305-15; note 115 supra. With regard to adjudication, the procedures developed for social security determinations are significantly different from the apparent intent of the APA, although they are still carried out in the name of the APA. See notes 109-13 & accompanying text supra. Finally, some scholarly writers question the relevance of general statements about administrative procedure and stress the need to pay attention to the specific context in which the particular agency process is required to function. E.g., G. ROBINSON & E. GELLHORN, THE ADMINISTRATIVE PROCESS xi-xii (1974).

However valid the observation regarding the decreasing relevancy of the Federal APA may be, the present author continues to attach considerable value to discussions of general principles of administrative procedure, derived from as many sources as can be managed by the researcher. Levinson, Toward Principles of Public Law, 19 J. PuB. L. 327, 332-34 (1970). 318. See notes 319-28 infra. 319. 5 U.S.C. § 553(a)(1) (1970). 320. Bonfield, Military and Foreign Affairs Function Rulemaking Under the APA, 71 MICH. L. REV. 222, 335-47 (1972). Professor Bonfield takes a similar view of the ability of a state legislature to impose procedural controls upon the Governor even when he exercises functions derived from the state constitution. Bonfield, The Iowa Administrative ProcedureAct: Background, Construction, Applicability, Public Access

MODELS

1977]

A contrary position may be asserted, to the effect that the principle of separation of powers precludes Congress from interfering in any 3 21 way with the exercise of the President's constitutional functions. Regardless of whether or not Congress could impose procedural requirements upon the President in the exercise of his constitutional functions, the fact remains that Congress has shown little inclination to do so. As a result, large areas of the President's constitutional 3 22 powers are untouched by congressional procedural requirements. The RMA defines "agency' to mean each state board or commission, other than the legislature or the courts, "authorized by law to make rules or to determine contested cases." 3 23 In this context, "law" arguably could be limited to statutory law: the RMA, therefore, would not apply to the Governor's powers under the state constitution. An alternative approach would include the constitutional as well as the statutory functions of the Governor. 3 24 The courts, of course, to Agency Law, The Rulemaking Process, 60 IOWA L. Rv. 731, 764 (1975) [hereinafter cited as Bonfield, The Iowa APA]. 321. The Administrative Conference of the United States has recommended that the rulemaking provision of the APA be extended to military and foreign affairs functions, which are expressly exempted from the Act as now written. 3 RECOMMENDATIONS AND REPORTS OF

THE

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES,

Recommen-

dation 73-5, at 28 (1975). The recommendation does not explain whether the Conference contemplates that the APA's rulemaking requirements would extend to the President in the exercise of functions derived from the Constitution. 322. See Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 CALIF. L. REv. 983 (1975), indicating a post-Watergate increase in congressional attempts to control the President. These attempts, however, are by no means a comprehensive system of controls over the White House. 323. RMA § 1(1). 324. State courts are generally reluctant to review actions of the Governor, especially where review would involve service of process upon the Governor, or where the petitioner seeks mandamus or other coercive relief against the Governor. See generally 39 AM. JuR. 2d, Governor § 10 (1968). Litigation involving the validity of official acts of the Governor seems quite commonplace, however, when the only requested relief is a judicial declaration and when the Governor is a nominal party, personifying the administrative agency that actually exercised its discretion. Judicial review of the chief executives' actions may have been strengthened by United States v. Nixon, 418 U.S. 683 (1974), the most dramatic of the Watergate cases. Further, even if state courts are reluctant to issue coercive process against Governors, federal courts have not experienced the same hesitancy when asked to issue such process against Governors. E.g., United States v. Barnett, 376 U.S. 681 (1964); Harvest v. Board of Pub. Instruct. 312 F. Supp. 269 (M.D. Fla.), stays denied 425 F.2d 1224 (5th Cir.), 397 U.S. 1018 (1970). No reported case has been found in which a state court has subjected the Governor to the requirements of a state APA. A partial explanation could be that the principle of separation of powers precludes the courts, no less than the legislatures, from encroaching upon the constitutional powers of the Governor. See Sullivan v. Askew, 348 So. 2d 312, 316 (Fla. 1977) ("prohibition against legislative encroachment upon the executive's clemency power is equally applicable to the judiciary").

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may subject the Governor to standards such as due process and the separation of church and state, which have been announced in the state or federal constitutions. The Florida APA deals directly with the chief executive. The definition of "agency" includes "[t]he Governor in the exercise of all ex' 32 5 ecutive powers other than those derived from the Constitution." The Act therefore does not apply to the Governor's exercise of powers 326 which have been derived from the state constitution. The courts impose some procedural controls upon the chief executive, as a matter of due process.3 27 The courts and legislatures, however, have left a broad range of activities which can be carried out in any procedural way the chief executive sees fit. In short, many of the chief executive's activities are free-form as far as the courts and legis328 latures are concerned. The functions of local governments generally are not covered by State APA's. The RMA deals with agencies of the state, 329 but not of 330 local government, and the states generally have followed this lead. This does not necessarily mean, however, that all local government decisions are reached through free-form processes. To the contrary, special purpose statutes or rules of state agencies dealing with such matters as zoning, tax assessment, and law enforcement impose procedural requirements upon local governments. City charters and other organic texts of local governments, as well as local ordinances or agency rules, prescribe other procedures. The courts also impose some procedural standards as requirements of due process. It thus appears that a substantial part of the business of local governments is conducted by formal or semi-formal decisionmaking processes. 325. 326.

FLA. STAT. § 120.52(1)(a) (Harrison 1975). This definition was formulated after Governor Askew vetoed, on separation of

powers grounds, an earlier version of the APA that purported to cover the Governor's constitutional as well as statutory powers. FLA. H.R.J. 1299 (1973). The present author agrees that the earlier version was a violation of separation of powers. See Levinson, The FloridaAPA, supra note 152, at 623. 327. See note 324 supra. 328. In another article the present author has advocated that chief executives, to the extent feasible, adopt executive orders setting forth procedural as well as substantive standards. The orders would transform free-form decisionmaking activities into semiformal activities. The semi-formal activities would be based upon procedural standards "voluntarily" adopted by measures that bind the chief executive until such time as they are amended or repealed by appropriate procedures. Levinson, PresidentialSelf-Regulation Through Rulemaking: Comparative Comments on Structuring the Chief Executive's Constitutional Powers, 9 VAND. J. TRANSNAT'L L. 695, 699 (1976). 329. RMA § i(1). 330.

See Bonfield, The Iowa APA, supra note 320, at 762-63.

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MODELS

The APA's could possibly be interpreted to include public and nonprofit corporations as "agencies"; but, even when such corporations perform functions similar to those carried out by the formal organs of government, the traditional interpretation seems to leave corporations outside the definition of "agencies." '33 1 Free-form activities, therefore, may continue to flourish in public corporations created by statute, and in nonprofit corporations established under general in3 32 corporation laws for the purpose of carrying out public functions. As a consequence, if a function previously carried out by a governmental organ is transferred to a corporation, that function thereby is removed from the controls of the APA. Indeed, one of the claimed advantages of having public functions carried out by corporations is that corporate management escapes the "red tape" that would be involved if government organs performed the same functions. Even though not governed by APA's, the functions of many corporations may be subject to procedural requirements imposed by statute, bylaw, case law, 3 33 or other sources. B.

Controls Over End Result

Even if an agency is permitted to reach a decision on a free-form basis, the end result reflected in that decision is subject to jurisdictional and substantive standards. In brief, an agency may act only in situations within the jurisdiction conferred by law and may reach only those results that come within the substantive standards provided by law. In this context, the "law" may be a statute, a constitutional provision, a controlling judicial precedent, or a binding rule or precedent of the agency itself. 33 4 Although some vestiges of sovereign 331. E.g., O'Malley v. Florida Ins. Guar. Ass'n, 257 So. 2d 9 (Fla. 1971). 332. An example of a nonprofit corporation carrying out a public purpose is Florida Legal Services, Inc., organized under the general statutes piertaining to nonprofit corporations by the Florida Bar, in consultation with the office of the Governor. The corpora-

tion assists agencies to provide legal services to the poor in civil matters. See Smith, Development of FloridaLegal Services, Inc., 48 FLA. B.J. 733, 734 (1974). 333. E.g., McCune v. Wilson, 237 So. 2d 169 (Fla. 1970), holding that the right to a fair hearing before expulsion was applicable, as a matter of state due process, to a member of a voluntary association of real estate appraisers, even though the association had no legal authority over the members' right to practice their profession. The court held that the organization was "quasi-public," and therefore subject to due process, since membership in the association may appear to the public to be a "tangible demonstration of professional competence and skill, professional responsibility, and acceptance by one's professional peers." Id. at 172. 334. Part of the teaching of Professor Davis is that agencies should adopt rules or open precedents as a means of "voluntarily" confining their own discretion on matters of substance, if other sources of law have not already established adequate standards. K. DAVIS, DISCRETIONARY JUSTICE 216 (1969).

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immunity remain, government agencies and their officers generally are subject to judicial review upon allegations that jurisdictional or 3 35 substantive standards were violated. A major question for administrative law scholars is whether the interests of citizens and government are protected adequately by judicial control as it is currently exercised over the end result of the agency process, especially when the agency has free-form discretion in matters of procedure. If the existing control is inadequate, additional controls require consideration. One possibility would be to have stricter jurisdictional and substantive prescriptions in the agency's enabling legislation. Substantive rules and controlling precedents of courts and agencies also would help to restrict the range of jurisdictional and substantive discretion left to the agency and would give the courts a more effective basis for keeping the agency confined within the prescribed jurisdictional and substantive limits. Another possibility would be to develop more incisive types of judicial review, both to reduce judicial deference to agency determinations and to increase judicial probing into the motives as well as the record of the decisionmaker. Still another solution would be to transform certain agency functions from free-form to semi-formal or formal thereby compelling the agency, in such situations, to follow some prescribed procedures, on the assumption that procedural regularity may have some effect upon the quality of the agency's end result. IV.

MODEL BUILDING

The classification of agency proceedings in the preceding pages is portrayed graphically as a grid found in Appendix A. The left column consists of a vertical listing of the twenty-eight procedural elements. 33 6 Across the top of the grid, seven additional columns are ar335. See note 324 supra. 336. A purely numerical system is suggested, rather than the combined letters and numbers used as headings within this article. The elements corresponding to the headings of the article would be numbered as follows: 01. Preliminary inquiries and submittals 02. Preliminary determinations and settlements 03. Initiating further proceedings 04. Notice 05. Intervention 06. Subpoena for attendance of witnesses 07. Discovery 08. Prior authorization, screening 09. Evidence limitations 10. Investigation by decisionmaker 11. Evidence presentations

1977]

MODELS

rayed to the right of this listing, and these seven columns represent the seven types of agency proceedings featured in the classification system. 337 In order to facilitate processing, and especially the use of data processing equipment, numerical headings are assigned to each of the twenth-eight elements listed in the left column and to each of the seven featured processes listed as headings across the page. The grid then consists of twenty-eight times seven boxes, and each box is identified by its numerical coordinates within the grid. For example, box No. 12.03 describes the provision with regard to element No. 12 in featured process No. 03.338 A number of analytical tasks can then be undertaken. A. Comparisons within the Grid One type of analysis would note similarities and differences of the boxes within the grid itself. For example, this analysis might show that boxes 12.01 and 12.02 were virtually identical, while box 12.03 was somewhat different, meaning in this case that the provisions on

12. 13. 14. 15. 16. 17. 18. 19. 20.

Cross-examination and access to adverse evidence Argument Assistance of counsel and others Conversion of pending proceeding from one type to another Decisionmaker Impartiality of decisionmaker Submittals by parties Record Form, findings, reasons

21. Filing, effective date 22. Reconsideration 23. Open proceedings 24. Public access 25. Publication 26. Executive/administrative review 27. Legislative review 28. Judicial review 337. The seven featured agency processes are: 1. Formal adjudication, Federal APA 2. Contested case, RMA 3. Formal adjudication, Florida APA 4. Notice and comment rulemaking, Federal APA 5. Notice and comment rulemaking, RMA 6. Notice and comment rulemaking, Florida APA 7. Informal adjudication, Florida APA 338. The process would be coded as "03" rather than "3," so that the grid could accommodate up to 99 processes, rather than only up to nine. If the project were of ambitious proportions, perhaps the symbol "003" would be preferable, so as to leave room for 999 processes.

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cross-examination (element No. 12) are virtually identical in the Federal APA on formal adjudication (featured process No. 01) and in the RMA on contested cases (feature t process No. 02), while different provisions on this point are found in the Florida APA on formal 339 adjudication. A more complex analysis within the grid could consider procedural elements in groups. For example, the analyst could inquire whether featured proceedings that are similar to one another with regard to cross-examination (element No. 12) are also similar to one another with regard to discovery (element No. 07), or assistance of counsel (element No. 14), and so on. If an affirmative answer is found, the indication is that certain group patterns of elements can be discerned. So far, the discussion has been purely descriptive, seeking to discover similarities and differences. Beyond this descriptive phase, questions of evaluation are likely to arise. Having discovered that 12.01 and 12.02 are virtually identical, while 12.03 is different, the analyst will seek an explanation for the difference. Research may reveal that something else in the Florida APA (featured process No. 03) requires cross-examination (element No. 12) to be treated in a unique manner. On the other hand, the analyst may not find any factor that imposes the difference between 12.03 and the neighboring boxes on the grid, 12.01 and 12.02. In such a situation, questions of evaluation arise. B.

Use of the Grid as Basis for Classifying Other Processes

Two hearing officers on the staff of the Administrative Procedures Division, Office of the Tennessee Secretary of State, recently conducted an interesting and effective analysis similar to the one proposed in this article. Their analysis was based upon a single model, the State APA. 3 40 The governing boards of the state's colleges and 339. Cross-examination is discussed in text accompanying notes 132-37 supra. 340. The Tennessee Uniform Administrative Procedures Act locates the centralized system of hearing examiners in the Administrative Procedures Division, Office of the Secretary of State. TENN. CODE ANN. § 4-527 (Cum. Supp. 1976). The Bates and Vick analysis was prepared for a meeting of a subcommittee of the House Committee on Government Operations, and was presented at a public meeting of the subcommittee on April 14, 1977 (letter from William N. Bates and Douglas Edwin Vick to author, May 6, 1977). The resemblance between the grids prepared, respectively, by Bates and Vick and by the present author is coincidental, since no discussion on this topic occurred before each grid was separately prepared. Bates and Vick prepared a grid, using the State APA contested case provisions as the basis for classification. A condensed version prepared by the present author is shown as Appendix B.

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MODELS

universities had submitted proposed legislation to exempt such institutions from the state's APA. 34 1 The officers undertook the analysis to assist a legislative committee to evaluate the proposal. Each of the twenty-one institutions had promulgated its own procedures regarding student discipline. The procedures were available if a student waived the right to proceed under the contested case provisions of the state APA. The gist of the proposal was that the institutions be exempted from the APA, and that each institution be permitted to use its own procedure exclusively. The grid developed by the Tennessee study effectively demonstrates that each institution has indeed adopted some rules, thereby making its student discipline procedures either formal or semi-formal, as the terms are used in the present article. The grid indicates wide variations in the packages of the several institutions. A few institutions have adopted packages that closely resemble the contested case provisions of the RMA. At the other end of the spectrum, some institutions have adopted very sketchy rules, which leave a great deal of procedural discretion in the hands of local institutional administrators, subject to procedural standards imposed by the courts as a matter of due process. a342 Many of the institutions fall somewhere between these two extremes. Of course, the grid does not answer the question whether the institutions should be exempted from the APA, but it does provide descriptions and classifications that have assisted 343 the legislative committee in its deliberations. The grid developed in the present article contains numerous mod341. The Tennessee Uniform Administrative Procedures Act is codified at TENN. CODE ANN. §§ 4-507 to 4-535 (Cum. Supp. 1976). The Act is discussed in Symposium, The Uniform Tennessee Administrative ProceduresAct, 6 MEM. ST. U.L. REv. 143 (1976). 342. One of the institutions (not selected for inclusion in the condensed version of the grid in the appendix, infra) adopted, as a rule, the General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133 (W.D. Mo. 1968). This statement appears as a rule of Volunteer State College, in Rules and Regulations of the State of Tennessee, ch. 0240-6-14 (p. 264). 343. The Bates and Vick grid classifies a number of agency processes by comparison to a single model-the State APA. The left column of the grid therefore contains a description of the provision of the State APA with regard to each procedural element, and the remaining columns reflect the result of comparing the processes of the respective institutions with the single model described in the left column. The same type of single-model grid underlies the recent study by Professor Paul Verkuil of the "informal" adjudicative procedures of a number of federal agencies. See Verkuil, Informal Adjudication, supra note 1. Verkuil's single model is Goldberg v. Kelly, and his study indicates the extent to which the agency processes under examination resemble Kelly with regard to each of the ten elements that he identifies in that case.

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[Vol. 26:872

els, consisting of the seven featured proceedings. The analysis of agency processes might reveal that the same patterns of procedural elements recur in a number of proceedings. The recurrence of a pattern of procedural elements could suggest the appropriateness of assembling or promulgating a model pattern. The possibility of developing a new model would increase as the study was expanded to 344 examine an increasing number of agency processes. C. Beyond Classification Comparisons within the grid, and classifications of other proceedings on the basis of the grid, constitute essential first steps toward the evaluation of administrative processes. Some suggestions for evaluation can arise from the classifications themselves. The recurrence of a particular provision, regarding a single element or a pattern, indicates that the provision has commended itself on a number of occasions to those who had authority to adopt it in the respective contexts where it is found. This recurrence itself tends to suggest a favorable evaluation of the provision involved. However, the development of law would be stifled if it depended solely upon principles that had been derived from factoring common elements out of the choices made in the past. Other sources, outside the grid, are essential for purposes of evaluation. First, experience in the respective jurisdictions requires examination. Some aspects of experience can be expressed factually: for example, the average time taken to dispose of a particular type of proceeding, the percentage of agency decisions reversed by the courts, and so on. A different type of fact-related experience involves attitudes, to the extent these can be factually described. For example, a survey of agency lawyers may indicate that a large majority of them consider that a particular provision is "unfair" or "too time consum-

344. The grid developed in the present article contains numerous models, consisting of the seven featured processes. Perhaps an even wider range of models would be more useful. As soon as a grid contains more than one model, it becomes impossible to insert any descriptions into the left column. That column can only contain the title of an element, such as "Discovery," without any description of any particular type of discovery provision. The description must be found within the boxes of the grid, indicating the provisions on this subject found in each of the models. The numerical code, by which each box on the grid may be designated for data processing purposes, is therefore a shorthand description of the pertinent provision, and a narrative description of this provision is needed to accompany the code numbers.

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ing." Although the opinions are subjective, the existence of these opinions is a fact that can be expressed by a qualified researcher. Yet another facet of experience can be found in reported court decisions, legislative committee reports, law review articles, and other sources containing commentary on agency workings. A second possible source of evaluation is the expansion of the grid so as to include models or proceedings from agencies or jurisdictions other than those currently under examination. The comparative approach provides the perspective of a broader range of ideas, and of reported experience, than could otherwise be found. Classification, experience, and comparison do not, in themselves, inevitably lead to any particular decision whether or not a particular procedure or procedural proposal is satisfactory. Discretion resides in such decisions, and this discretion is guided by subjective judgment calls. 3 45 The proceedings featured in the grid result from the subjective judgments of the respective authors, and the same will be said of any newly created models, or any revisions of the old ones. The literature on the "informal process" already presents the subjective views of a number of distinguished authors, based partly upon their personal observation or participation in agency processes, and partly upon their speculative inquiries. 346 This dialogue has spanned a considerable period of time, but has not, as yet, produced any widely acclaimed solution to the many problems perceived in the "informal process." The subjective dialogue may be more fruitful if it were coupled with descriptions and classifications of formal, semi-formal, and free-form proceedings.

345. On systems and values, see, e.g., Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and PoliticalScience, 20 STAN. L. REv. 169 (1968); Mayo & Jones, Legal-Policy Decision Process: Alternative Thinking and the PredictiveFunction, 33 GEO. WASH. L. REv. 318 (1964); Wechsler, Toward Neutral Prin-

ciples of Constitutional Law, 73 HARV. L. REv. 1 (1959). 346.

See Davis, Revising the Administrative Procedure Act, 29 AD. L. REv. 155

(1977); Mashaw, supra note 2; Stewart, Reformation of American Administrative Law, 88 HARV. L. REv. 1667 (1975); Verkuil, Informal Adjudication, supra, note 1.

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V.

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MODEL GRIDS

Appendix A Grid portraying elements of the administrative process based upon an analysis of three Administrative Procedure Acts.

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MODELS

ELEMENTS

13. Argument

13.01

13.02 13.03

14. Assistance of counsel and others 15. Conversion of pending proceeding from one type to another 16. Decisionmaker 17. Impartiality of decisionmaker 18. Submittals by parties 19. Record

14.01

14.02

15.01 16.01 17.01 18.01 19.01

15.02 15.03 16.02 16.03 17.02 17.03 18.02 18.03 19.02 19.03

20. Form, findings, reasons 21. Filing, effective date 22. Reconsideration

20.01 21.01 22.01

20.02 20.03 20.04 20.05 20.06 20.07 21.02 21.03 21.04 21.05 21.06 21.07 22.02 22.03 22.04 22.05 22.06 22.07

23. Open proceedings 24. Public access

23.01 23.02 23.03 23.04 23.05 23.06 23.07 24.01 24.02 24.03 24.04 24.05 24.06 24.07

25. Publication 26. Executive/administrative review

25.01 26.01

25.02 25.03 25.04 25.05 25.06 25.07 26.02 26.03 26.04 26.05 26.06 26.07

27. Legislative review 28. Judicial review

27.01 28.01

27.02 27.03 27.04 27.05 28.02 28.03 28.04 28.05

13.04

13.05

13.06 13.07

14.03 14.04

14.05

14.06

15.05 16.05 17.05 18.05 19.05

15.06 15.07 16.06 16.07 17.06 17.07 18.06 18.07 19.06 19.07

15.04 16.04 17.04 18.04 19.04

14.07

27.06 27.07 28.06 28.07

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THE AMERICAN UNIVERSITY LAW REVIEW

Appendix B

Comparison of procedural rights afforded under the Tennessee Uniform Administrative Procedures Act and the Student Disciplinary Rules of Colleges and Universities of Tennessee. Condensed, by present author, from analysis of 21 institutions, prepared by William N. Bates and Douglas Edwin Vick, April 14, 1977, for subcommittee of House Committee on Government Operations.

University

Procedural Elements 1. Notice

X

X

X

X X

X X

X X

X X

lc. Nature of hearing 1d. Right to counsel 2. Statement of legal authority 2a. Particular section of statutes referred to

X

X

X

X X

3. Short and plain statement of matters asserted 3a. More definite statement available

X

la. Time of hearing lb. Place of hearing

X

X

X

X X X

4. Opportunity for all parties to respond in person

or by attorney

*X

X -X

-X

X

-X

4a. Opportunity to present appropriate responsive pleadings, evidence and argument on

all issues 5. Pre-hearing conference available 5a. Order entered by agency reciting action taken at pre-hearing conference 6. Availability for informal disposition of case by consent order, default, or agreed settlement 7. Complete record in contested case 8. Record (verbatim) 8a. Transcript possibility

X

X

-X -X

-X

X

-X

X

X

X

X

X

X

X X X

-X -X

Rules of Evidence 1. Admissible in court la. Reasonable prudent man admissibility

X ?

-X?

2. Rules of privilege effective 3. Cross-examination of witnesses

? X

X

X

X

X

-x

X

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MODELS

University

-v

1. 2. 3. 4. 5.

Discovery Subpoenas available Subpoenas duces tecum available Discovery orders available Depositions available Admissions available

6. Right to inspect and copy from files Final orders 1. In writing la. Stated on record lb. Has findings of fact Ic. Conclusions of law id. Reasons for ultimate decision le. Notification of decision Decisionmaker 1. Hearing officer (APA) 2. State agency (APA)

-X

X

X.X

X

X

X

X

X

X

X

X

X X

X

X

X

X

3. Dean 4. Committee 4a. Student-faculty 4b. Student 4c. Faculty Appeal Procedure 1. Petition for re-hearing (APA)

X

X

X

X

X

X

X X

X

X

X

X

2. Dean 3. Committee 3a. Student-faculty 3b. Student 3c. Faculty 4. University president

X Similar to Tennessee APA *X Beyond Tennessee APA -X Limited Right/Below Tennessee APA Standards

X

X

X X