Safeguarding the Rights of Legal Services Clients: Creative use of Administrative Law

Transcription

1 Safeguarding the Rights of Legal Services Clients: Creative use of Administrative Law July 27, 2011 Lunch and Learn Susan C Antos, santos@empirejustice.org

2 A Fourth Branch of Government? Three branches of government: legislative, judicial and executive United States Constitution: Article 1, 1: all legislative Powers being created shall be vested in the Congress of the United States, which shall consist of a Senate and the House of Representatives.

3 Functions of an Administrative Agency Legislative functions created by and delegated by the legislature Notice and comment rulemaking Quasi-judicial Functions

4 Limits of Agency Power What is a rule? A numerical policy applied across the board to all. Schwartfigure v. Hartnett, 83 NY 2d 296 (1994) Procedure or practice requirements of an Agency. SAPA 102(2) A fixed general principle to be applied without regard to facts or circumstances. Matter of Roman Catholic Diocese v. NYSDOH, 66 NY 2d 948,951 (1985)

5 Limits of Agency Power What happens when an agency issues guidance that is not subject to notice and comment rulemaking? xternal

6

7

8 Limits of Agency Power Article IV 8 of the New York State Constitution No Rule or regulation made by any State Department except as related to the organization or internal management of a state department, shall be effective until it is filed [with] the Department of State; SAPA 202

9 Limits of Agency Power Graves v. Doar, 62 A.D.3d 874 (2d Dep t 2009) Court struck down a group home food stamp budgeting rule where there was no notice and comment rulemaking. Cavetti v. Berlin (Sup. Ct., Nassau Co., 2011): Plaintiffs obtained TRO, prohibiting reduction of food stamps when standard utility allowance was changed without notice and comment rulemaking. Pleadings are in the Benefits Law Database. ex=welcome

10 Limits of Agency Power Jensen v. Perales, unreported Supreme Court decision from Tompkins County available in benefits law database struck down a budgeting methodology implemented by the state without regulation finding violation of the state constitution. Case is available in the Benefits Law Database.

11 Limits of Agency Powers Power of an agency is limited by the statute that created it. Rule of ultra vires Panama Refining v. Ryan, 293 U.S.388 (1935) Dissent in Rudder v. Pataki, 246 A.D.2d 183, 185 (3d Dep't 1998), dismissal on standing grounds affirmed at 93 N.Y.2d 273 (1999) [Governor s Office of Regulatory Reform].

12 Rulemaking Federal Administrative Procedure Act (APA) 5 USC 551 et. seq. New York State Administrative Procedure Act (SAPA) All proposed, adopted and Emergency regulations appear at:

13

14

15 The Judicial Function No person may be deprived of life liberty or property without due process of law Goldberg v. Kelly, 397 U.S. 254 (1970) Can a state terminate public assistance to an individual without affording him an opportunity for an evidentiary hearing? Must the hearing be held and decided before benefits are terminated?

16 Goldberg Are welfare benefits property? Benefits are a matter of statutory entitlement. A controversy over eligibility may deprive an eligible recipient of the very means by which to live. Governmental interest in conserving fiscal and administrative resources to not override the interests of the individual in the welfare context.

17 Social Security Disability Benefits Is a pre-termination hearing required? Mathews v. Eldridge, 424 U.S 319 (1976)

18 What process is due? Fundamental requisite of due process is to be heard at a meaningful time and in a meaningful manner The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. Goldberg v. Kelly at 269 (1970).

19 Brave New World of Due Process Fair hearing requests can already be made on line New developments The Fair Hearing Evidence Management System (FHEMS) is web based and involves the electronic assembly of fair hearing packets. The companion system, the Electronic Evidence Packet System (EEPS), requires that evidence at fair hearings be viewed and introduced electronically. Videoconferenced fair hearings

20 Administrative Stare Decisis Requires that an administrative hearing decision conform to agency precedent unless the agency can distinguish the subsequent case on the facts or law. Matter of Field Delivery Serv., 66 N.Y. 2d 516, 520 (1985).

21 Administrative Stare Decisis Most agencies maintain copies of decisions on their website This year, OTDA began posting redacted fair hearing decisions to its website in searchable format at This Fair Hearing Archive contains all OTDA administrative hearings retroactive to 11/1/10

22

23 Administrative Stare Decisis Empire Justice Center and Western New York Law Center have maintained an online data base of fair hearing decisions. This Fair Hearing Bank is free for all to use at: ex=welcome

24

25 Administrative Stare Decisis Commissioner s Decisions of the New York State Education Department can be found at: Department of Labor Unemployment Insurance Hearings can be found at e.shtm

26

27

28 The End