ADMINISTRATIVE LAW

Fall 2015 Syllabus

(8-16-15)

Room 190

Professor Edwin L. Felter, Jr.Tuesdays and Thursdays., 6:00 PM to 7:15 PM

Office of Administrative Courts

1525 Sherman Street, 4th Floor

Denver, CO 80203

Tel. (303) 866-5676 – direct

E-mail:

COURSE RULES & INFORMATION

Information Concerning How the Course is Organized

  • We don’t use a Casebook and we don’t brief cases (an exercise reserved for 1Ls). Moreover, we use John Reese’s Administrative Law Desk Reference for Lawyers (referred to in the TWEN site, the Syllabus, and the Schedule of Assignments and elsewhere as the “CB”), and the Study Outlines(which I prepared) appearing on the TWEN site next to the corresponding class date. In the CB, Professor Emeritus Reese strategicallylays out snapshots of important U.S. Supreme Court opinions dealing with Administrative Law. The Syllabus and the Schedule and Assignments lay out a sequence of topics that I follow, however, I will not follow the CB to the exclusion of other reading assignments. The CB is academic background reading to give you a deeper understanding of administrative law. Please read the CB assignment and study each Study Outline (very important that you study in advance of each class) so that you will be prepared to discuss specific problems relative to the subject matter for the class, e.g., to argue for or against specific propositions, or describe what you would do as an agency head or lawyer for the agency.The Study Outlines will not be shown in class. Also, be prepared to ask any questions you have about the Outlines, or any other matter, at the beginning of class before we begin the discussion. You will be expected to be familiar with the assigned CB readings and the Study Outline for each class.
  • You may be randomly called upon to play a role, make an argument or answer questions regarding the topic of the specific class. To relieve the full onus of engaging in the discussion, please pair up with another individual in order to cooperate in dealing with issues.
  • On the Reading List (on the TWEN site) as opposed to Readings, there are eleven (11) required articles that are keyed in (under Readings) to class date and specific subject matter (referred to under Readings as “RL.” Please read these articles in advance of the specific class in order to achieve greater understanding of the subject matter.
  • Administrative Law is unlike any other course in law school. There is no body of the “common law” of Administrative Law. Administrative Law is more of a method of doing business with governmental agencies. There are some exceptions where legislative bodies have delegated the resolution of certain disputes between non-governmental parties to the executive branch, i.e., the administrative law system. For example, workers’ compensation and unemployment insurance disputes. Structurally, administrative law adjudications are performed within the executive branch of government by statutory judges.
  • Administrative Procedure Acts (APAs) offer a general roadmap for doing legal business with agencies, however, each agency has an organic act (enabling legislation), which must be consulted for procedures and concerning what can and cannot be done. Each agency has its own set of substantive, interpretative and procedural rules concerning the agency’s area of regulation. There are important differences between the federal APA and State APAs. These will be discussed.
  • The course unfolds like a layered cake. The first half of the course involves building a foundation in Administrative Law (general principles). The second half involves the application of Administrative Law concepts to different boutique areas of Administrative Law.

The course is organized as follows:

Basics

  1. The Administrative State Within Our Government
  2. General Administrative Law principles
  3. Agency Exercise of Power
  4. Rulemaking
  5. Basics of Administrative law Adjudications
  6. The Administrative Procedure Act (federal and State)
  7. Formal Administrative Law Adjudications

Important General Administrative Law Issues

  1. Judicial Independence and Accountability in the Administrative Law Judiciary
  2. The State Central Panel (of Administrative Law Adjudicators) Phenomenon
  3. Freedom of Information (Federal and State)
  4. Dissection of Administrative Law Decisions

Licensing/Regulatory Matters in General

  1. General Licensing Board Matter, includes a Memo Writing Exercise
  2. State Employment Hearings
  3. Civil Rights Matters
  4. Alternative Dispute Resolution in Administrative Law Cases, includes a Mediation Exercise

Specific Subject Matter Areas of Administrative Law

  1. International Administrative Law
  2. Unemployment Insurance Hearings/ Local Administrative Law Focusing on County Zoning
  3. Workers’ Compensation

Representing the Client

  1. Effective Pre-hearing, Hearing, and Appellate Techniques in Administrative Law Cases
  2. Successfully Prosecuting and/or Defending the Professional Licensee
  3. Public Assistance Matters
  4. Successfully Representing the Injured Worker and/or Insurance Carrier in Workers’ Compensation
  5. Lawyer Ethics in Administrative Law

Wrap-Up

  1. Exam Practice and Coaching
  • There will be several guest speakers to corroborate and bring home fundamental principles of Administrative Law in operation in the real world.
  • I am always happy to respond to specific questions by email, with one caveat. In fairness to all, if you email a question to me, I will redact your name and email the question and answer to all, prefaced by “a student has asked the following question and here is my answer….”

Administrative Law is a required course and some of you may prefer to be elsewhere. I will, however, do my best to make it interesting, experiential and fun. To that end, we’ll discuss administrative law problems and engage in role playing as much as possible. My ultimate objective is to help you become competent practitioners of Administrative Law, with an advantage over other practitioners.

Lastly, at the first class, we’ll form a small committee to be the liaison between the class and me, in order that students with concerns can have the concerns communicated to me and remain anonymous, if they so choose.

More Information On Course Coverage: This is an introduction to administrative law, which is administered in the executive branch of government. The course includes a consideration of constitutional provisions, separation of powers issues, statutes, rules, cases, policies, procedures and practice related to the executive branch departments, agencies, officials and adjudicators who administer laws concerning the government and adjudicate disputes within the executive branch. Contrary to popular belief, administrative law is not one of the duller and drier courses in law school. It may be the most important course you took in law school. To some, it is more interesting, intricate, and intellectually challenging than other courses with titular attractiveness. Judicial branch judges concede that the average citizen is more likely to encounter the administrative law system than the court system. The proliferation of administrative agencies and executive branch adjudication systems since the New Deal make it more likely that you will be representing clients before an administrative agency, a licensing board and/or an executive branch adjudicator known as an administrative law judge (ALJ), hearing officer, hearings examiner or appeals referee; or, if you are in Canada or Australia, an administrative tribunal. The course will deal with the historical evolution of administrative law principles, and it will focus slightly more on state and local administrative issues than federal administrative law issues. It is more likely than not that you will begin practicing in the state and local arenas rather than in the federal system. Nonetheless, the critical aspects of the federal system will be studied.

Administrative law controls everything other than civil matters that include tort, contract matters, domestic relations; and, criminal law. Administrative law encompasses matters ranging from workers’ compensation; licensing of professionals, businesses and activities; regulatory matters; human services from Medicaid to welfare benefits to day care licensing, child abuse; election disputes involving fair campaign practices; civil rights; unemployment benefits; motor vehicle drivers’ licenses; public utilities; education including teacher dismissals and special education cases; game and fish matters; zoning matters; and, many other areas where the executive branch of government is responsible for resolving disputes between citizens and the government and, sometimes, between citizens and other citizens, e.g., employers, insurance companies.

Course Objectives: You will learn: (1) the basics of administrative law (2) at all levels of government with a greater focus on state and local administrative law (3) with the ultimate objective of preparing you to be a competent practitioner in administrative law regardless of the milieu in which you may find yourself after being admitted to practice, e.g., solo, medium to large law firm, public interest group, corporate or government practice.

Text:

Administrative Law: Desk Reference for Lawyers (Lexis

Nexis, 2003),[“CB” in Reading List] [available at DU Bookstore].

The Study Outlines, appearing on the TWEN site after the corresponding class date, are very important. Please study them in advance of class so that you will be prepared to engage in a discussion and role playing concerning the specific subject matter of the class.

Other Readings: You are responsible for articles, the APA (Federal and State), statutes and cases that are available on LEXIS or WESTLAW. The Reading List [“RL”] contains the appropriate citations. Items that are not available on LEXIS or Westlaw will be made available to you on the TWEN site for this course. Two collateral books (listed near the end of the RL) are on reserve at the Library (the Asimow book is not required reading but may be helpful(it focuses on Federal and California Administrative Law). Designated parts (on the Reading List) of the Phillips & Phillips’ book on Workers’ Compensation are required reading). The Colorado Office of Administrative Courts website address is listed on the RL (there will be one assignment requiring information from the website). Also, informational foreign administrative law websites are listed (optional and not required reading).

Grading: The grade for the semester will be a combination of a final exam (80% - see “Final Exam,” below), plus class participation (15% - see “Class Participation,” below), and 5% for the written exercise. The College of Law rules require the median grade for this class to be a B. In the unlikely event that an individual’s class preparation or participation is seriously deficient, the professor reserves the right to take that into account, non-anonymously, in grading. Without satisfactory class participation and/or written exercise submissions, an A is virtually unachievable.

Attendance: The law school mandates an attendance policy. Those who miss 20% of the classes, or more, will not be eligible to take the final examination. This is pursuant to accreditation policies of the American Bar Association. Excused absences must be based on extenuating circumstances and require the approval of the Academic Dean.

Communication: The professor will rely on the Westlaw TWEN site e-mail feature in order to facilitate prompt communication. Communication of course related matters will be via the Westlaw TWEN site for this course.

Class Participation: Verbal skills are as important for a lawyer as written skills. Therefore, there is an expectation that each of you will participate, meaningfully, in class discussions. To ensure maximum equal opportunity, the professor will use both volunteering and random call-on. Each student is expected to be prepared for each class – if not, please say so when called on. Being prepared for class means that you have read and understand the assignments sufficiently to engage in a professional discussion and role playing concerning the specific subject matter of the class. To relieve the full onus of engaging in the discussion, please pair up with another individual in order to cooperate in dealing with issues.

As an advance assignment (for each class), students are asked to comb the news and/or the Internet to find something relevant to the specific subject matter of the class and report to the class. This can be a team project.

Class participation will be non-anonymously graded: A=well prepared, contributions of substance; C=fairly prepared contributions of mild substance; F= consistently unprepared, frequent absences, and or poor contributions evidencing a lack of understanding; B and D will not be used for class participation (in the real world, you either carry the day, are “so-so,” or you fail to meet your objectives). The grade is not based simply upon the number of times you speak in class. It is based on the substance of what you say. As 10% of the semester’s grade, it has the clear capacity to move the course grade up or down one notch. Without satisfactory class participation, an A is not achievable. This grade may be subjective to an extent, but it is based on the professor’sprofessional judgment. The purpose of this grade is to gauge your ability to communicate your legal advice to clients, your arguments and rationales to opposing counsel and judges as well as supervising attorneys. The grades will not be computed until the end of the semester, so don’t ask for an evaluation during the semester. Grades are not subject to debate any more than an adverse decision on appeal. Written exercise grades will be: A, B. C, D, F, with pluses or minuses.

Final Exam: There will be an in-class, anonymously graded, closed book final examination consisting of legal problems based on actual professional practice. It will rely solely on the semester’s readings and class discussions, and not extra library research. There will be one 50-question multiple choice test part (60% of final exam grade) of the exam (analogous to the Multi-State) with two hours allowed and one essay question(40% of final exam grade) with one hour allowed for a total of three hours. 10 to 20 hours advance study is suggested. The exam will be on ______,, location to be announced. [There are no take-home Bar Examinations, nor are there open book Bar Examinations. Therefore, in the Professor’s opinion, an in-class exam is better preparation to pass the Bar].

Exam Review: You are encouraged to review your exam results – on Registrar’s Reserve –after grades are posted. With it, you will be provided a Review Folder containing the questions, a grading explanation, and a peer-review file with the correct multiple choice answers and some of the best essay answers from the class. With this review system, a professor conference is seldom needed, but if you wish to schedule a conference, please be aware that the College of Law rules prohibit a professor from changing a grade after it is reported, except for a mathematical or other non-judgmental error.

Seating Chart: By the second class, select a seat you really like, and sign for it on my seating chart. Based on the participation format, the seating chart is “jurisdictional,” i.e., a person not on the chart (or on it but repeatedly not in the exact seat) will receive a final course grade of F. If you wish to change your seat during the semester, please feel free to do so, but please ask the professor to change the chart, immediately.

Office Hours: Since I am an adjunct professor, office hours at the Law School will be next to impossible, other than by an extraordinarily special appointment. Feel free to make an appointment to see me downtown at the Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver, CO 80203, tel. (303) 866-5676 – direct. E-mail address:

E-mail: Important communications and class changes, etc. will be by TWEN e-mail. Please check your official DU<@student.law.edu> e-mail account or your Westlaw TWEN account regularly.

Study Groups: Please feel free to work together in study groups, work collaboratively on course outlines, share class notes and so forth, if you so desire. Indeed, I encourage you to do so. Please note, however, that once final exams have been passed out the “no consultation” rule is in effect. Consequently, plan to have your collaborative work completed before the final exam is passed out.

Honor Code: The Honor Code applies to all aspects of this course. Even a suspicion of a violation requires a report, without notice, to the Honor Board.

FALL SCHEDULE & ASSIGNMENTS

Administrative Law

Felter

(8-16-15)

Room 190

Advance Assignment: Read CB 1-41 and RL 1 [ALJs in Historical Perspective] before the first class.

Tuesday, August 18. Administrative Law Principles; CB 43-54 and 73-80 [PowerPoint presentation on how administrative law fits into the scheme of things with PowerPoint Handouts]

Thursday, August 20.Administrative Law Principles – Re-read CB 43-54 and 73-80; RL 20, page 2 [Colorado APA, §§ 24-4-101 –24-4-106, C.R.S.] -- briefly review for familiarity]. Study Outline.

Tuesday, August 25.Agency Exercise of Power. Involvement of Courts, Scope of Judicial Review -- CB 81-110. Study Outline.

Thursday, August 27.Rulemaking -- CB 111-149; RL 20 [§ 24-4-103, C.R.S.]. Study Outline. Please read Chevron, U.S.A. V. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L. Ed.2d 694 (1984) and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L. Ed. 124 (1944) [Deference].

Tuesday, September 1.Basics of Administrative Adjudication – CB 151-222. Study Outline.

Thursday, September 3.The Administrative Procedure Act (APA) and Availability of Judicial Review – CB 223-257; RL 19 [§ 24-4-106, C.R.S.] Study Outline.

Tuesday, September 8. Formal Adjudications, Hearing Requirements, Study Outline.Evidence – CB 255-282; RL 20 [§ 24-4-105, C.R.S.]; [§ 8-43-210, C.R.S.]; [PowerPoint Presentation on Credibility Determinations with PowerPoint Handouts]; Please Look atOAC Website,

Thursday, September 10.Judicial Independence and Accountability of ALJs – RL 2, 3, 11 (OPTIONAL), 30, 32, 33, 34, 35 and 42 (OPTIONAL) (in this order); [PowerPoint Presentation on Integrity in Administrative Justice with PowerPoint Handouts].

Tuesday, September 15.The Central Panel Phenomenon – RL 1, 10, 23, 40, 41 (in this order). Study Outline.Memo to Senior Partner Assignment Exercise Will Be Released on TWEN.

Thursday, September 17.The Central Panel in Colorado – Guest: Hon. Matthew Azer, Director and Chief ALJ, Colorado Office of Administrative Courts, 2007------.

Tuesday, September 22. Freedom of Information –CB 55-73; RL 28.

Guest: Professor Emeritus John Reese.

Thursday, September 24.Administrative Law Decisions (Initial and Final) – CB 283-316; RL 20 [§ 24-4-105, C.R.S.], RL 44.