In chapter 3, we took a tour of civil procedure and of the state and federal COURT
systems. In chapter 4, we are going to take a closer look at THREE of the
FOUR MAIN sources of LAW: common law, statutory law, and administrative
law. In chapter 5, we will take a closer look at the FOURTH main source of
law: constitutional law.
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We begin with common law.
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This is the legal rule the United States inherited from England during the Colonial period –
roughly 1607 – 1776.
This is a COMMON LAW RULE, and it’s called The Bystander Rule.
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Liable means they have to pay money to compensate for the victim’s injuries.
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Open to the public examples: restaurant, bar, nightclub, grocery store, convenience store.
Not open to the public examples: computer manufacturer, such as Apple Computer, Oracle,
Intel, et cetera. Wouldn’t include “The Apple Store” locations, just the Apple
Computer CORPORATE offices, like the ones down on De Anza Boulevard.
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When a therapist determines, or pursuant to the standards of his profession should
determine, that his patient presents a serious danger of violence to another, he incurs an
obligation to use reasonable care to protect the intended victim against such danger.
Under California (statutory) law, they cannot be found liable for failing to confine Poddar,
but under the common law of negligence, we find them negligent in not having warned
either Tatiana or her parents about Poddar’s threats.
This was a pretty big departure from common law not only in California but in the country
as a whole, at least with regard to therapists. California statutory law gives patients the
right to forbid their therapists from disclosing anything said during a therapy session,
and to sue them for $500 or 3 times any actual monetary harm experienced, whichever
is greater, if they disclose such information. So, prior to this decision, therapists tended
to be very conservative about notifying ANYONE about anything they learned about a
person during a therapy session, including threats to kill or harm others. The majority
on the California Supreme Court felt that this new common law rule was needed to
COUNTERACT this hesitancy of therapists to notify anyone about such threats. They
felt that when someone’s life is in danger, or when they are in danger of serious injury
from another person, their right to be warned of a credible threat against them overrode
the patient’s right to privacy, and even overrides the therapist’s right to be assured they
will not be successfully sued by the patient for divulging this information. Three of the
Supreme Court justices disagreed with this opinion; but as with all state supreme court
cases, it only takes 4 justices to render a decision. A simple majority is all that is
needed. When a state supreme court decision is 4 against 3, which was the case in
Tarasoff v. U.C. Regents, and is the narrowest margin you can have in a case, it is
called a “split decision.”
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Liable means they have to pay money to compensate for the victim’s injuries.
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Here is the first of the THREE PARAGRAPHS that make up Vermont’s statute.
Paragraph a: A person who knows that another is exposed to grave physical harm
shall, to the extent that the same can be rendered without danger or peril to
himself or without interference with important duties owed to others, give
reasonable assistance to the exposed person unless that assistance or care is
being provided by others.
Notice that the duty is limited to rescues which would not put the rescuer or anyone
in their charge in danger or peril. These are sometimes referred to as “easy
rescues” in the law.
Notice also that if someone else is performing the rescue, you’re off the hook.
Interesting!
Now lets look at paragraphs b and c from this statute.
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Paragraph b: A person who provides reasonable assistance in compliance with
subsection (a) of this section shall not be liable in civil damages unless his acts
constitute gross negligence or unless he will receive or expects to receive
remuneration. Nothing contained in this subsection shall alter existing law with
respect to tort liability of a practitioner of the healing arts for acts committed in
the ordinary course of his practice.
Vermont calls this entire law: all 3 paragraphs of Vermont code chapter 23 section
519, their Good Samaritan Law. But MOST STATES’s Good Samaritan laws
just contain this middle paragraph. This is the way that MOST states have dealt
with the problem that a rescuer’s civil liability for screwing up a rescue will
tend to unreasonably discourage people from attempting rescues – by
LIMITING a rescuer’s liability to the situation where their behavior constitutes
GROSS NEGLIGENCE, and by making it LEGALLY IMPOSSIBLE for a
victim to sue a rescuer unless their behavior rises to this standard – or should I
say FALLS TO this level. Vermont’s law has one more paragraph. Let’s take a
look at it.
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Here it is. Paragraph c: A person who willfully violates subsection (a) of this
section shall be fined not more than $100.00
That’s interesting. Maximum $100 fine. I think this was done intentionally. I think
the Vermont legislature probably heard testimony from SOME experts who said
“be careful, because if you make the penalty too high, some people will attempt
rescues that they are simply not equipped to carry off, and they may end up
doing more harm than good.” By capping the fine at $100, the Vermont
legislature is essentially saying “it’s illegal not to rescue a stranger if its an easy
rescue, but it is only a slap on the wrist, so you are free to decide to risk paying
this penalty if you feel you would very likely screw up the rescue.” Also
remember, a judge, after hearing all the facts, COULD decide not to impose
ANY fine. One hundred dollars is the MAXIMUM fine the judge may impose,
but the judge is not REQUIRED to impose any fine if he or she feels the
potential rescuer made a wise decision in deciding not to rescue.
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The answer to the first question is: It depends on your relationship to the baby. If
you are its babysitter, parent, grandparent, aunt or uncle, then yes. If you have
never met this baby or its parents before in your life, then no.
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Let’s look at our SECOND major source of law, out of the three we’re taking a
closer look at here in chapter 4: statutory law.
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The United States Congress is the legislative body of government at the federal
level. Each STATE has a STATE LEGISLATURE that creates STATE
STATUTES, but the U.S. CONGRESS creates all FEDERAL statutes.
The United States Congress consists of two houses: the Senate and the House of
Representatives. The Senate has 100 members, and the House of
Representatives has 435. In the House of Representatives, states with larger
populations have more representatives than states with smaller populations. Not
so in the Senate, where each state has two representatives, regardless of
population.
Either house of Congress may originate a proposed statute, which is called a BILL.
Once both houses pass a bill, they must send it to the president for signature. If
the president opposes the bill, he will VETO it. If he signs the bill, it becomes a
FEDERAL STATUTE.
A similar process happens in each state for state statutes. Bills originate in the state
LEGISLATURE. Once both houses of the legislature pass it, they send it to the
GOVERNOR for signature. If the governor opposes the bill, he or she can
VETO it. If the governor SIGNS the bill, it becomes a STATE STATUTE.
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In 1963, President John F. Kennedy proposed legislation to guarantee equal rights to
African Americans in the areas of jobs, housing, voting, schools, and other basic
areas of life. The bill went initially to the House Judiciary Committee, which
heard testimony from outside experts for weeks. Eventually, the Judiciary
Committee approved a version of the bill and sent it to the full House for
discussion and approval.
The bill was divided into ten “Titles,” with each Title covering a major issue. Title
VII concerned discrimination in EMPLOYMENT. Before the House votes to
approve a bill, each representative can offer AMENDMENTS to that bill:
proposals to change the WORDING of some SECTION of the bill. Let’s take a
look at what happened to Title VII of the Civil Rights Act when it was put up
for discussion and approval, first in the House of Representatives, and then in
the Senate.
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Here is one section of Title VII as reported BY the House Judiciary Committee TO the FLOOR of
the HOUSE, which is the full membership of the House of Representatives.
Sec. 703(a). It shall be an UNLAWFUL EMPLOYMENT PRACTICE – meaning it shall be against
the law - for an employer – one, to fail to hire, or to refuse to hire or to discharge – that means
fire or let go - any individual, or to otherwise DISCRIMINATE AGAINST any individual with
respect to his compensation, the terms of his employment, the conditions of his employment, or
the privileges of his employment, because of such individual’s race, color, religion, or national
origin.
Number two: It shall ALSO be unlawful to limit one’s employees, or to segregate one’s employees,
or to classify one’s employees in any way which would deprive, or would TEND TO deprive,
any individual of employment opportunities because of such individual's race, color, religion, or
national origin, or to otherwise adversely affect his status as an employee.
I changed the wording around a little bit to try to render the meaning a little bit clearer.
There’s a lot going on here.
And in 1964, when this bill was being discussed, some people were very strongly against it.
There is ONE quote in your book from Representative Waggonner of Louisiana on page 81 where he
talks about the FIRST paragraph in this section. He says “I think if I own a business I should be
able to hire whoever I want. It’s my business. I own the building. I’m taking all the RISK that
the business will fail. I should be able to hire and fire people based on instinct. I shouldn’t have
to justify to ANYONE why I hired one person and not another. That infringes on my freedom.”
or words to that effect.
Also, some people were worried about REVERSE discrimination. There’s a good quote in your
book on pages 81 and 82 from Mr. Johansen in which he asks a question about quotas. In his
response, Mr. Goodell, one of the AUTHORS of the bill, answers that the intent of this law is to
make it unlawful to give a job to a LESS qualified white person if a MORE QUALIFIED black
person has applied for the job, but that if both applicants are EQUALLY qualified, the employer
is free to hire whomever he chooses.
These were important questions. The members of the House of Representatives were trying to figure
out how this law would actually AFFECT THINGS if it was PASSED AS WRITTEN. That’s
hard work! It’s HARD to predict how these words are actually going to affect things! I mean,
these are complex sentences to parse and understand. I don’t think their ultimate effect was
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clear to ANYONE at the time, but people in Congress have to TRY to do that. It’s their job.
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Then something interesting happened. Mr. Smith of Virginia proposed that a single
word be added to the comma-separated list of things people would not be
permitted to discriminate on the basis of. That word was “sex.” This caused a
firestorm of reaction up and down the House of Congress. Some people were in
FAVOR of the amendment and other people were AGAINST it. But the
POLITICAL VIEWS of some of the people who were in FAVOR of this
AMENDMENT might SURPRISE YOU. Some of them were in favor of it
because they felt that women, too, were discriminated against in the workplace
and they shouldn’t be – sure. Those are the ones you would EXPECT. But
SOME of the members of the House of Representatives actually VOTED for
this amendment because they hoped that, WITH THE AMENDMENT, the
chances of the bill PASSING would be greatly diminished. Risky? Sneaky?
Underhanded? All of the above! But that’s how laws are made. These people
are playing HARDBALL. They DON’T AGREE WITH EACH OTHER. They
don’t agree with each others’ basic worldviews. And that means they fight
DIRTY and HARD to get the laws they like PASSED and the laws they don’t
like DEFEATED. Mark Twain said there are two things you never want to
watch being made: laws and sausages. Both processes are DIRTY and may
cause you to LOSE YOUR APPETITE. In the case of learning how LAWS are
really made, it may cause you to lose your appetite for a career in Congress, or
even for a job trying to help a Congressperson get elected!
The amendment PASSED, and then the House of Representatives approved their
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version of the 1964 Civil Rights Act bill. The sneaky peoples’ gamble didn’t work, but it still
shows you how sneaky can be in Congress!
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The bill was then pushed over to the Senate. Some Senators raised a NEW issue
with the bill. This time, they were worried about PARAGRAPH 2. Would the words
in paragraph 2 mean that an employer could never give job applicants any kind of
employment test to help them separate the job applicants who possessed the
knowledge required by the job from those who didn't? One of the MAIN Senators
worried about this was Senator TOWER of Texas. In RESPONSE to Senator
Tower’s concern, the Senate approved an AMENDMENT to section 703: paragraph
h.
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Here’s what paragraph h of section 703 said. Notwithstanding any other provision
of this title – that means regardless of what ANY of the OTHER
PARAGRAPHS in THIS LAW SAY - it shall NOT be an unlawful employment
practice for an employer to give or to act upon the results of any professionallydeveloped ability test, provided that such test is not designed, intended or used
to discriminate because of race, color, religion, sex, or national origin.
The Senate PASSED that amendment, and then they passed the entire bill.
There was a little more back-and-forth in the joint House-Senate Conference
Committee, but the SHORT VERSION of the story is that the Civil Rights Act
was signed into law by President Lyndon Johnson in 1964 with both Mr. Smith’s
amendment and Senator Tower’s amendment still in it, so THESE TWO
AMENDMENTS became PART of the FINAL LAW.
But that’s not the end of the story, because NOW people can bring LAWSUITS
against EMPLOYERS based on the new law, and the COURTS have to figure
out what all the words in the law MEAN. This is called STATUTORY
INTERPRETATION.
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Statutory interpretation is the job of the courts. Nobody else is permitted to perform
this job. Well, technically, the ADMINISTRATIVE AGENCIES perform
SOME statutory interpretation, but let’s save our discussion about THAT for our
next SECTION.
Statutory interpretation is a court's power to determine the meaning of new
legislation so that they can apply the substantive legal rules it creates to the
specific fact pattern before them.
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Statutory interpretation is the job of the courts. Nobody else is permitted to perform
this job. Well, technically, the ADMINISTRATIVE AGENCIES perform
SOME statutory interpretation, but let’s save our discussion about THAT for our
next SECTION.
When the COURTS PERFORM STATUTORY INTERPRETATION, they are
supposed to do it as a THREE STEP PROCESS.
First, they’re supposed to TRY to INTERPRET the statute by simply reading it and
assigning the usual and customary meanings to each of its words and phrases.
The rule that they MUST START WITH THIS METHOD is is called the “plain
meaning rule,” and this particular approach to statutory interpretation is called
the PLAIN MEANING APPROACH. The plain meaning rule says that if the
meaning of a statute is clear from the words contained in the statute, the court
cannot use any other means to interpret the statute. They are forbidden from
doing so. Only if the meaning of the statute, or some part of the statute is still
UNCLEAR after using the PLAIN MEANING APPROACH is the court
permitted to go to step 2.
Step 2 is using the history of the legislation to try to understand what the legislature
MEANT when it put certain WORDS AND PHRASES into the law. Transcripts
are available of every word said in every committee and subcommittee of
Congress, and of every word spoken on the House and Senate FLOORS. Also,
the court may obtain copies of every committee and subcommittee REPORT.
The court will review these documents and attempt to fill in the blanks on the
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portions of the law that are either unclear – the official word is “ambiguous” - or where the
law is SILENT on some important point – the official word is that the statute is
“incomplete” in some way.
Step 3 is the last resort. Only if the plain meaning of the words in the statute AND a study of
the documents available from the LEGISLATIVE PROCESS STILL leave some things
unclear or incomplete is the court PERMITTED to go to step 3: general public policy. In
this step, the court will look to other statutes, the decisions of the supreme court in their
state, and other evidence of the goals and values of the current government. The court
will then attempt to interpret the law in a way that is most CONSISTENT WITH both the
LETTER AND SPIRIT of these other laws, court decisions, and implied government
goals and values.
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An EXAMPLE of statutory interpretation is GRIGGS VERSUS DUKE POWER
COMPANY. This is a U.S. Supreme Court case. It was decided in 1971. The
Duke Power Company required that applicants for higher paying, promotional
positions within their firm meet two requirements: first, they had to have a high
school diploma; second, they had to pass a standardized written test. Some
black job applicants sued the Duke Power Company, arguing that these
requirements illegally discriminated against BLACK job applicants, relatively
few of whom could meet both requirements.
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The primary LEGAL ISSUE placed before the U.S. Supreme Court was: Does Title
VII of the 1964 Civil Rights Act require that employment tests be job-related?
...because Duke Power Company had not submitted ANY EVIDENCE that
EITHER of the two requirements had any statistically-significant EFFECT on a
person’s ability to PERFORM the jobs in question. Instead, they argued that,
since the requirements were race-neutral on their face, they were not illegal.
The U.S. Supreme Court’s DECISION in this case surprised some people. The
Supreme Court said that not only do REQUIREMENTS that disproportionately
exclude blacks need to be JOB-RELATED, they need to test for skills that are a
BUSINESS NECESSITY in that position – meaning there must be essentially
NO ALTERNATIVE to having these skills if you want to successfully do this
job. So even if you can convince a jury that people who pass this test will, on
average, be more effective on the job than people who don’t, you won’t be
permitted to use that test. There must be NO WAY TO DO THE JOB without
those SKILLS. That was a VERY STRONG RULING, favoring the BLACK
JOB APPLICANTS and making the restrictions on employers PRETTY
STRONG when it comes to using job tests like this standardized written test that
Duke Power was using. In other words, DESPITE THE PRESENCE OF
SENATOR TOWER’S AMENDMENT in the LAW, employment tests that more
BLACKS fail than WHITES are ILLEGAL under this law unless the skills they
test for are a BUSINESS NECESSITY. And it is the EMPLOYER’S BURDEN
TO PROVE that they are a business necessity.
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Employers – and especially employers in the deep South – strongly disliked this Supreme
Court decision. But for almost 20 years, that was the law. Until, in 1989, after President
Reagan, a Republican, had been able to replace FOUR of the NINE SUPREME COURT
JUSTICES with much more CONSERVATIVE justices, the U.S. Supreme Court decided
WARDS COVE PACKING COMPANY versus ATONIO, and CHANGED the common
law rule that had been created by the court in their decision on GRIGGS versus DUKE
POWER COMPANY.
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In Wards Cove Packing Company versus Atonio, the Supreme Court ruled that an
employer must demonstrate that the disproportionate exclusion of a minority by
a test or other requirement “serves, in a significant way, the legitimate
employment goals of the employer.” Otherwise, the test or requirement will be
illegal under Title VII of the Civil Rights Act. The court went on to say that
“There is no requirement that the challenged practice be ‘essential’ or
‘indispensable’ to the employer’s business.”
This was a very different rule than the rule formed under “Griggs.”
The Supreme Court removed the “business necessity” requirement of Griggs and
replaced it with a “significantly serves legitimate employment goals”
requirement. It’s subtle. You have to think about it, but it leaves the employer a
lot more discretion in setting job requirements.
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This fact was not lost on those who advocate for equality for blacks and other
minorities in the workplace. Enough people in America were AGAINST this
change in Supreme Court policy that the United States Congress stepped in to
pass a new law making it MANDATORY that employers use employment tests
ONLY WHERE the skills they test for are a BUSINESS NECESSITY.
Congress can do that, because in the hierarchy of law, statutes are above the
common law rules created by judges. Congress can OVERRULE the U.S.
Supreme Court if the U.S. Supreme Court is just interpreting a REGULAR
federal statute, like the 1964 Civil Rights Act. Congress CANNOT overrule the
U.S. Supreme Court if it is interpreting the U.S. Constitution, as we will learn in
chapter 5.
Both houses of Congress passed the new bill. But President George H.W. Bush,
also known as President Bush Senior, vetoed the bill. Congress tried to
OVERRIDE the President’s veto. To do that requires a two-third vote in both
houses of Congress. But the override attempt failed by one vote in the Senate.
That is an incredibly slim margin!
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Civil rights advocates immediately tried again. Their supporters in Congress wrote
a new bill with slightly different language than the one that had been vetoed.
The new bill, called the Civil Rights Act of 1991, said that a written test that
blacks fail at higher rates than whites is usable if and only if it tests for skills
that are “job related”; and, using that test is “consistent with business necessity.”
Consistent with business necessity – what does that mean exactly? Nobody was
really sure. But it did contain the two key words from the Griggs decision:
“business necessity.”
All laws passed by Congress begin with a definition of terms section. Democrats
and Republicans argued about what the definition of the two key expressions
JOB RELATED and BUSINESS NECESSITY would be. But they couldn’t
agree. So they agreed not to define them within the statute. Their glossary at the
beginning contained a definition of all the other key terms in the bill, but not
these two. That would mean they would be passing the buck to the COURTS to
figure out what these expressions mean. In November 1991, President Bush
signed the new bill into law, and the business necessity requirement of Griggs
was apparently restored.
That’s where our story ends. Our purpose in this section was not to teach you
everything there is to know about Title VII of the Civil Rights Act of 1964, but
just to teach you a little bit about how the legislative process works, and how it
interacts with statutory interpretation by the courts to produce law.
THIS CONCLUDES PART 3 OF THE CHAPTER 4 LECTURE.
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Not assigned until 5th class meeting.
Our third and final unit within chapter 4 is Administrative Law.
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Go straight here: Administrative law is that portion of the law that concerns all
agencies, boards, commissions, and other entities created by the federal or state
legislature and charged with investigating, regulating, and adjudicating a
particular industry or issue.
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Go straight here: Administrative law mainly refers to the regulations written and
published by administrative agencies – both federal and state; but in most
definitions, administrative law ALSO INCLUDES the laws Congress PASSES
to CREATE administrative agencies in the first place. These laws are called
“enabling legislation,” because they cause an administrative agency to be born,
out of nothingness, into the world.
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The first such piece of enabling legislation PASSED in the U.S. was the Interstate
Commerce Act of 1887, which created America’s first administrative agency – the
Interstate Commerce Commission. The Interstate Commerce Commission was charged
with setting rates for railroads, among other things. People – especially farmers – had
been complaining that the railroads had too much monopoly power, and that the prices
they were charging to move freight were too high – higher than they needed to be. The
U.S. Congress agreed. The Interstate Commerce Commission studied the railroads’
cost structures and set the maximum allowable rates they could charge for each type of
freight, for each city-to-city route. The book of allowable rates they published was
thousands of pages long. Doing this kind of detailed economic analysis and setting
specific rates for specific routes and types of cargo was just too time-consuming and
detailed a job for Congress to do itself, so it created the Interstate Commerce
Commission and gave THEM the power to do it – and the responsibility for doing it.
That’s what administrative agencies are for – to do jobs that are too detailed and time
consuming for Congress to do themselves. The California Department of Fish and
Game for example was created by the California state legislature to set the limits on
each species of fish, per fisherman per day, for each river, lake, and beach in California.
They also set the maximum take of boar, ducks, et cetera. All wild game. The limits
even vary by month, and are set higher and lower from one year to the next as local
populations of birds or fish or other animals shrink or grow. This is just too detailed
and time-consuming a job for the California State Legislature to do themselves, so they
created the California Department of Fish and Game to do it.
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Administrative agencies generally have three powers: the power to create new
regulations within the area of human activity that Congress or the state
legislature has authorized them to govern - that’s called the power of
RULEMAKING - the power to investigate whether anyone is VIOLATING
those regulations, and to issue CITATIONS FINING people who have violated
them – that’s called their power of INVESTIGATION; and finally, the power to
hold hearings that are going to feel very much like a court hearing, if someone
who is cited or fined says that they actually DIDN’T violate the regulation.
That’s called the power of ADJUDICATION. The word adjudication has the
same root as the word “judge,” so the power of adjudication is the power to
JUDGE something.
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There are two types of administrative rules: legislative rules and interpretive rules.
Legislative Rules create new substantive or procedural law. An example of a
legislative rule issued by the California Department of Fish and Game would be
a rule raising the bag limit on rainbow trout from 5 per day to 6 per day in a
particular district, or pushing back the start of the commercial salmon season
from May 1 to May 15th. An interpretive Rule merely puts people on notice
how the agency intends to interpret specific words and phrases in a specific
statute. As such, it does create any NEW rules, it just tells people what the
agency thinks the CURRENT RULES created by the LEGISLATURE are.
Remember, a statute can only be created by a legislature. An administrative
agency cannot create a STATUTE. The laws ADMINISTRATIVE AGENCIES
make are called REGULATIONS. So an INTERPRETIVE RULE tells the
world how the agency intends to interpret, not its OWN RULES, but the rules
passed by the legislature. The legislature uses the legislative process from time
to time to give the administrative agency new instructions – a new or expanded
job to do – and interpretive rules tell the world what the agency believes those
new instructions mean.
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There are three types of administrative rulemaking: Informal Rulemaking, Formal
Rulemaking, and Hybrid rulemaking.
Of these three, the first two types – informal rulemaking and formal rulemaking –
are the two BASIC types.
In informal rulemaking, the agency has to publish a proposed rule in advance and
permit the public a period in which to submit comments, but does not have to
hold a public hearing allowing the public a chance to air their grievances in
person. In formal rulemaking, the agency has to do both; that is, they have to
publish a proposed rule in advance and permit the public a period in which to
submit comments, AND hold a public hearing allowing the public a chance to
air their grievances and comments in person. During the hearing, opponents of
the rule are permitted to cross-examine experts from the agency challenging
their reasoning for going ahead with a proposed rule. Also, when the agency
makes its final decision about the rule, it must prepare a formal, written
response to each objection raised at the hearing.
Hybrid rulemaking follows the informal rulemaking model, but adds in a few
elements from formal rulemaking. For example, the agency may allow their
experts to be cross-examined on a few key issues, but the opponents of the rule
are not allowed to set their own agenda at the public hearing.
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The second big power of administrative agencies – after rulemaking – is the power
of investigation. Agencies have to be able to check up on people and companies
and make sure they’re abiding by the agency’s rules. The California
Department of Fish and Game has fish and game wardens that walk around
where people are fishing and hunting and checks that they have the proper
licenses and that they have not hunted a disallowed species or exceeded the bag
limit. Those are state administrative agency employees. The Internal Revenue
Service has tax auditors. The Department of Occupational Safety and Health
has safety and health inspectors that inspect restaurants and factories to make
sure the conditions in them are safe and clean. Restaurant and factory owners
know that the agency is empowered to do a SURPRISE INSPECTION; that is,
to show up unannounced and do an inspection of the premises for health and
safety violations. This gives the restaurant and factory owners an incentive to
keep their businesses safe and clean at all times.
Surprise inspections are officially known as SEARCHES, and if the inspector finds
evidence of wrongdoing, they are permitted to SEIZE that evidence for use in
an administrative hearing later.
Administrative agencies can also issue SUBPOENAS to help them investigate
possible wrongdoing by companies and individuals.
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The GENERAL definition of a subpoena is an order to appear at a particular time
and place to provide evidence. Maybe the evidence the witness is going to
provide is just oral. In other words, maybe agency personnel are just going to
ask them some questions. In that case, we just call it a subpoena.
But if the agency wants the witness to bring some specific written information with
them, it will issue a SUBPOENA DUCES TECUM. A subpoena duces tecum is
an order to appear at a particular time and place to provide evidence, and to
bring with you specific named or described documents.
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Adjudication is the process of JUDGING whether the accused person or business
has violated the rules published by the agency.
Most administrative agency adjudications begin with a hearing before an
Administrative Law Judge. An Administrative Law Judge is an employee of the
agency but is expected to be impartial in her rulings. All parties are represented
by counsel. The rules of evidence are informal, and an Administrative Law
Judge may receive into evidence both testimony and documents to help decide
the case. It feels a lot like a bench trial in a regular U.S. court of law. There is
never a jury in these administrative hearings.
The losing party has a right to appeal to an appellate board within the administrative
agency whose rules the defendant is accused of violating. They may NOT
appeal to a REGULAR court of law until they have exhausted the available
appeals within the agency. This policy is called the DOCTRINE OF
EXHAUSTION OF REMEDIES. The decision of the appellate board is
generally final, but the losing party CAN appeal to a trial court of general
jurisdiction if they can argue that the decision of the agency was arbitrary and
capricious. If it’s a federal administrative agency, then the appeal will be to a
federal court. If it’s a state administrative agency, the appeal will be to a state
court.
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When a court reviews the outcome of an adjudication proceeding, they will
generally defer to the agency’s findings on the facts provided there is substantial
evidence to support their finding. They do not automatically substitute their
judgment for the agency’s regarding whether a particular action occurred or not.
This is similar to the way APPEALS COURTS generally defer to the findings of
a JURY regarding the facts.
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But what is more surprising is how a court will treat the agency’s findings with
regard to the LAW. A court reviewing an administrative agency’s decision will
generally defer to the agency’s findings on the law as well, provided the
agency’s interpretation of the law meets the rather easy test of being
“reasonable.” This is very different from what appeals courts do when they are
reviewing the decisions of TRIAL COURTS regarding the law. Appeals courts
review past decisions in detail and come to their own independent conclusions
with regard to what the LAW is, and then automatically SUBSTITUTE those
conclusions for those of the trial court.
That’s why I said the decision of the appeals board within the agency is usually final
– because a regular court will give the agency pretty wide discretion in
interpreting the law within the area of human activity that they are assigned to
regulate. They will not automatically substitute their judgment for the agency’s,
the way appeals courts routinely do.
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If you carefully read the section on administrative law in your book, you will realize
that administrative agencies have a lot of power over both individuals and
businesses. What controls are in place to keep this awesome power in check?
Here are two such controls:
The Freedom of Information Act was passed in 1966. It allows both businesses and
individuals to demand copies of two different types of data from an
administrative agency that has that data.
Information about how that agency OPERATES, and information that agency has
about US.
The agency doesn’t have to GIVE you the information if it relates to national
security, or an ongoing criminal investigation, or personnel decisions within the
agency such as a decision to give someone a raise or a promotion, or if it
contains the trade secrets or private financial data of a private business, or if it
would divulge private information such as whether a particular employee within
the agency is gay or has HIV/AIDs. That’s a long list of exceptions, isn’t it?
Still, you can use the freedom of information act to compel the FBI to give you a
copy of their FBI file on you, if they have one. I demanded that they give ME a
copy of the file they had on ME. They wrote back and said sorry, Mr. Lilly,
you’re just not interesting enough for us to HAVE an FBI file on you. Actually,
they didn’t say that. They just said they didn’t have any information on me. But
the IMPLICATION of course was that I was just not interesting to them; which
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is a good thing, I think.
The other federal law that puts SOME restrictions on the power of government agencies is the
PRIVACY ACT. That was passed in 1974. It prohibits FEDERAL agencies from giving
any information about you to any other agency or organization without your written
consent. This makes it much more difficult for federal agencies to SHARE information
they have about specific individuals. Basically, it makes it ILLEGAL for them to share
the information without requesting your permission first.
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