Combination of functions in formal adjudications

1. Combination of functions in formal adjudications • Recall Withrow v. Larkin: • Combination of functions – investigation, prosecution, adjudication –does not alone offend constitutional procedural due process requirements • But concerns about bias/undue influence still exist when agency officials engage in all of these tasks during a single case. So: • Legislatures have stepped in to fill some of this void • APA– separates functions and insulates ALJs somewhat • Missouri– In state law administrative issues, Missouri General Assembly created the Administrative Hearing Commission (independent agency that hears appeals from various agencies in certain areas)

2. APA and the separation of functions in formal proceedings – Sec. 554(d) • An “employee who presides at the reception of evidence” – shall NOT • Consult any person or party on a fact in issue, unless on notice/opportunity for all parties to participate. • This is in addition to Sec. 557(d)’s prohibition on ex parte contacts with outsiders • Be responsible to or supervised by any employee/agent who investigates or prosecutes for the agency • Conversely, no employee w/ investigation/prosecution functions in that case or a factually related casemay participate in or advise in a decision, recommended decision or review of that decision • That employee can participate as a witness or counsel in public proceedings

3. Some exceptions to the APA’s separation of functions • Section 554(d) does not apply to: • Hearings re applications for initial licenses • Hearings re validity or application of public utilities’ or common carriers’ rates • To the agency or members of the body comprising the agency • Why these exceptions: • In the first two – the agency and regulated entity usually aren’t in an adversarial position despite the formality of the hearing • Note – Sec. 557(d) prohibitions on ex parte contacts do still apply • In the last – exemption for agency heads or “members” (essentially heads of multi-member agencies) is necessary. They often have prosecution/investigation duties. Without the exception, they would be unable to (1) sit in review of ALJ decisions or (2) ever supervise ALJs.

4. APA hypos: does the following violate Sec. 554? Pursuant to §§554/556/557, Assoc. Dir. of the CPSC filed a complaint against a crayon manufacturer because the crayons allegedly contained dangerous chemicals. Critical to this prosecution is whether the chemicals found in the crayons “pose an unreasonable danger to the health and safety of” children as required in the applicable statute. • If the ALJ takes evidence and testimony on the issue but still is unclear on some of the scientific issues, can he consult a CPSC scientist for help? • Consultation is w/in the agency so only Sec. 554 would apply (not Sec. 557 ban on ex parte contacts) & none of the exemptions apply. • Answer will depend on whether the consultation involves a “fact in issue” in the proceeding. It likely does given the nature of the proceeding (are chemicals dangerous?) but you may need to know more • Can he consult a CSPC lawyer for aid in interpreting the statute? • Again only Sec. 554 applies because intra-agency consult • As long as not a lawyer involved with the case, he can consult on anything not “ a fact in issue”

5. More APA hyposon combinations of functions What if the ALJ issues an initial decision in favor of the CPSC and the manufacturer appeals. After the appeal is heard and still pending, CSPC Commissioner A talks to the Associate Director about the pending case.Violation of the APA? • Commissioner A is exempt from the requirements of Sec. 554(d) – she gets to talk to whoever she wants • BUT the Associate Director is in violation of Sec. 554(d) because of the prohibition that keeps him from taking part in the review process given that he had prosecutorial functions earlier (see slide 2)

6. Separation of functions and Missouri’s Administrative Hearing Commission • Like Withrow, state constitutional law does not per se prevent combination of functions in agencies • But the Missouri Administrative Hearing Commission exists as an independent agency that can hear certain kinds of cases • AHC hears appeals and original claims arising from a variety of agencies in contested licensing cases, tax cases, some personnel disciplinary issues and other miscellaneous issues – see http://oa.mo.gov/ahc/ & http://oa.mo.gov/ahc/pdf/JurisdictionChart.pdf • A contested case is a formal adversarial hearing similar to formal adjudication under the APA • See Mo. Rev. Stat. § 536.010(4): contested case = proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law [statute, regs or constitution] to be determined after [adversarial] hearing.” • Contested hearings before the AHC provide some separation of functions from the initial prosecution/investigation (and sometimes initial decision)

7. The middle ground of procedural requirements in adjudications – organic statutes & regulations • Although there are far more formal adjudications than there are formal rulemakings; it is still possible for courts to find that the formal requirements of the APA have NOT been triggered. • Remember – only one of the three approaches we saw yesterday PRESUMED that the words “hearing,” “public hearing,” etc. meant that the APA’s formal procedures were required • More often organic statutes or agency regulations are the primary source of procedural hearing requirements in adjudications • So one could have a statute that provides for detailed procedural requirements in hearings. • Or one could have a general statute – e.g., requiring a “public hearing” – that the agency has further fleshed out with regulations imposing procedural requirements

8. Hybrid procedural requirements by the courts in adjudications • As with Sec. 553 rulemakings, COURTS cannot graft on additional procedural requirements simply because they think more procedures would be better • Vermont Yankee prohibition applies to informal adjudications too • BUT Overton Park also applies in this context suggesting that courts can force agencies to create contemporaneous records of decision-making process which may indirectly force them to use certain procedures in informal adjudications to ensure adequate records • Courts can also require additional procedures in proceedings that are informal adjudications under the APA if they need to do so to satisfy constitutional due process concerns (as Vermont Yankee noted)

9. Final Exam Info • Exam – Wednesday, May 8, 8:30-11:30 am • Office Hours (just for you): • Monday, May 6 – 9:00-4:30 • Tuesday, May 7 – 9:00-4:15 • I will be around the office on Friday (tomorrow) and on other days for later takers if you want to drop in or make an appointment but the above are days I will be prioritizing Admin Law students over my other obligations. • You can email or call me but I prioritize people who are in my office so don’t necessarily expect immediate responses. • Also, complex questions via email will usually get you a request for clarification. So if you want a quick answer, in-person questions work better.