JUDICIAL REVIEW OF AGENCY ACTION

Transcription

1 OF AGENCY ACTION ARKANSAS ENVIRONMENTAL FEDERATION MAY 9, 2018 MARK ALLISON DOVER DIXON HORNE PLLC LITTLE ROCK, ARKANSAS

2 What is it? When do I need judicial review? How do I obtain judicial review? New developments.

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4 THREE DEPARTMENTS OF GOVERNMENT LEGISLATIVE EXECUTIVE JUDICIAL ARTICLE 4, SECTION 1 SEPARATED POWERS CHECKS AND BALANCES ARTICLE 4, SECTION 2

5 LEGISLATIVE DEPARTMENT LEGISLATIVE FUNCTION MAKES THE LAWS LOOKS FORWARD GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES SENATE COMMITTEES

6 EXECUTIVE DEPARTMENT IMPLEMENTS AND EXECUTES THE LAWS GOVERNOR SUPREME EXECUTIVE POWER LT. GOVERNOR SEC. OF STATE TREASURER AUDITOR ATTORNEY GENERAL ARTICLE 6

7 JUDICIAL DEPARTMENT RESOLVES DISPUTES LOOKS BEHIND SUPREME COURT APPEALS WRITS COURT OF APPEALS CIRCUIT COURTS ORIGINAL JURISDICTION ALL JUSTICIABLE MATTERS DISTRICT COURTS

8 OTHER CONSTITUTIONAL OFFICERS AND AGENCIES CREATED BY CONSTITUTION TREASURER SECRETARY OF STATE LAND COMMISSIONER GAME AND FISH COMMISSION

9 STATE ADMINISTRATIVE AGENCIES CREATED BY LEGISLATURE COMBINE GOVERNMENT FUNCTIONS LEGISLATIVE, EXECUTIVE AND JUDICIAL ADEQ ARKANSAS PC&E PUBLIC SERVICE COMMISSION HEALTH DEPARTMENT

10 WHAT IS IT? COURT S REVIEW OF ACTION BY ANOTHER GOVERNMENT BRANCH OR OFFICIAL MARBURY V. MADISON (U.S. 1803) HAWKINS V. GOVERNOR (ARK. 1839)

11 Marbury v. Madison It is emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

12 Hawkins v. Governor The Legislature, then, can exercise no power which properly belongs to the judiciary, or the judiciary, any power that rightly belongs to the executive. The duty of the Legislature is, to prescribe the rule of action for the State; that of the judiciary, to interpret that rule, or to expound the law; and that of the executive, to see that the laws are faithfully executed. But each has the right to judge of the Constitution for itself; for without the exercise of such a right, there would not be three equal and coordinate departments of the government; neither would the Constitution be placed under or entrusted to their respective guardianship and care

13 Hawkins v. Governor It is, however, the peculiar province and duty of this court to interpret and decide upon the laws and the Constitution in the last resort. If two laws are opposed to each other, the court must determine which shall govern; so if the Constitution and a statute stand in irreconcilable variance. Those whose duty it is to interpret the rule of action, must be of necessity left free to declare what that rule is, or we deprive the judiciary of the power of judgment and will, which are all the sovereign attributes they possess

14 WHEN DO I NEED? PERMIT APPEAL ENFORCEMENT ACTION STATUTE RULE-MAKING OTHER GOVERNMENT ACTION AFFECTING RIGHTS

15 HOW DO I OBTAIN? GET A LAWYER JUDICIAL WRITS PROHIBITION, MANDAMUS, CERTIORARI, ETC. STATUTES ADMINISTRATIVE PROCEDURES ACT AWAPCA OTHER AGENCY SPECIFIC STATUTES

16 HOW DO I OBTAIN? BASIC ISSUES PRE-REQUISITES EXHAUST ADMINISTRATIVE REMEDIES/FUTILITY NO OTHER LEGAL REMEDY

17 HOW DO I OBTAIN? BASIC ISSUES WHO CAN FILE? CONSTITUTIONAL STANDING STATUTORY STANDING PERMIT HOLDER PERSON AGGRIEVED

18 HOW DO I OBTAIN? BASIC ISSUES WHERE TO FILE? WHAT CAN THE COURT DO?

19 HOW DO I OBTAIN? BASIC ISSUES STANDARD OF REVIEW DEFERENCE TO AGENCY DE NOVO REVIEW QUASI-LEGISLATIVE (RULE-MAKING) QUASI-ADJUDICATORY (PERMIT APPEAL)

20 HOW DO I OBTAIN? BASIC ISSUES GROUNDS FOR REVIEW EXCEEDS AUTHORITY ARBITRARY AND CAPRICIOUS ILLEGAL ACTION PUBLIC NOTICE AND COMMENT DUE PROCESS

21 HOW DO I OBTAIN? BASIC ISSUES LIMITED ISSUES ON REVIEW PREPARING THE RECORD GETTING THE RECORD TO THE COURT CAN I INTRODUCE NEW EVIDENCE? EXPLAINING THE PROBLEM

22 ARE THERE NEW DEVELOPMENTS? YES.

23 NEW DEVELOPMENTS SOVEREIGN IMMUNITY BOARD OF TRUSTEES, UNIV. OF ARKANSAS V. ANDREWS (ARK. 2018) THE STATE OF ARKANSAS SHALL NEVER BE MADE A DEFENDANT IN ANY OF HER COURTS ARTICLE 5, SECTION 20 (1874)

24 NEW DEVELOPMENTS SOVEREIGN IMMUNITY POST-ANDREWS APPEAL OF O&G COMMISSION DECISION DISMISSED O&G DECISION VOID, Hurd v. Ark. O & G Comm. APPEAL OF PLANT BOARD DICAMBA RULE-MAKING DISMISSED PLANT BOARD DICAMBA RULE VOID, McCarty v. Ark. Plant Board MEDICAL MARIJUANA COMMISSION CASES

25 NEW DEVELOPMENTS SOVEREIGN IMMUNITY WALTHER V. FLIS ENTERPRISES, 2018 Ark. 64, March 1, 2018 SOVEREIGN IMMUNITY IS AN AFFIRMATIVE DEFENSE MUST BE ASSERTED AND PROVED

26 NEW DEVELOPMENTS SOVEREIGN IMMUNITY WALTHER V. FLIS ENTERPRISES, 2018 Ark. 64, March 1, 2018 SOVEREIGN IMMUNITY IS AN AFFIRMATIVE DEFENSE MUST BE ASSERTED AND PROVED

27 HACKIE V. BRYANT, Pul. Co. Cir. Ct., 60-cv TUPAC S FORMER BODYGUARD - APPLICATION FOR CLASS C SECURITY LICENSE DENIED - SOUGHT REVIEW UNDER THE APA - APA IS UNCONSTITUTIONAL WAIVER OF SOVEREIGN IMMUNITY - CASE DISMISSED - NO PROCEDURE TO SATISFY DUE PROCESS - ORDER UNDER APA ALSO VOID

28 NEW DEVELOPMENTS SOVEREIGN IMMUNITY - IMPACTS ADEQ PROGRAM APPROVAL RIGHT TO APPEAL ADEQ ACTION? RIGHT TO APPEAL PC&E DECISION? FEDERAL FUNDING/GRANTS? POSSIBLE OPTIONS FOR RELIEF?

29 POTPOURRI PSD ONGOING VIOLATION? CITIZENS SUIT TO REVIEW PERMIT? PETITION TO OBJECT FOR PSD?

30 QUESTIONS? MARK ALLISON DOVER DIXON HORNE PLLC