REGENT NOTEWORTHY ADMINISTRATIVE LAW DEVELOPMENTS IN SELECTED STATES

REGENT NOTEWORTHY ADMINISTRATIVE LAW DEVELOPMENTS IN SELECTED STATESAuthor(s): Frederick DavisSource: Administrative Law Review, Vol. 17 (FALL, 1964), pp. 72-90Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40709357 .

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DIVISION OF STATE ADMINISTRATIVE LAW

Editor: Frederick Davis Emory Law School, Atlanta, Georgia 30322

REGENT NOTEWORTHY ADMINISTRATIVE LAW DEVELOPMENTS IN SELECTED STATES*

By Frederick Davis * #

The information contained herein is neither exhaustive nor complete. Moreover, it must, of necessity, reflect the bias of the author who, in preparing this report, was required to select developments which in his judgment were significant enough to pass on to you.

Despite the almost primitive methods employed in gathering the information, however, the author was astonished by the significance and volume of state developments. It is hoped that however inadequate it may be in other respects, this report may pass something of this impression on to you.

Summary

For footnote documentation of the developments described in this summary, please refer to the more particular discussion of the State in question which appears infra.

On the legislative side, Administrative Procedure Acts modelled roughly along the lines of the Model Act x were adopted in three

* Originally prepared as report for the 1964 Committee on Administrative Law of the Association of American Law Schools, Ralph F. Fuchs, Chairman. The reporter is deeply grateful to those Deans and Professors of Administrative Law of the Association of American Law Schools who so generously took the time to record, on postcards furnished to them, their views as to the most significant judicial and legislative developments relating to administrative law which took place in their respective states during the past year or so.

**A.B. 1948, Yale University; LL.B. with Specialization in International Affairs 1953, Cornell University; LL.M. (honours) 1954, Victoria University of Wellington (N.Z.); member, New York Bar; Professor of Law Emory University; editor, Division of State Administrative Law of the Administrative Law Review.

1 The term Model Act is used here in a generic sense and comprehends both the original Model State Administrative Procedure Act, and the Revised Model State

72



DIVISION OF STATE ADMINISTRATIVE LAW 73

States (Georgia, Oklahoma, and West Virginia) and rejected in one State (Illinois).2 Maine, which adopted a unique Administra- tive Procedure Act, under the title "Administrative Code," in 1961, made some substantial amendments to its Act in 1963. Unfortunately, both the Georgia and Oklahoma statutes exempt some of the most significant agencies from coverage, so developments in those States may be more regressive than anything else.

Arkansas adopted such comprehensive legislation establishing procedures to be followed in license issuance and revocation that the legislation may justly be called an Administrative Procedure Act for Occupational and Professional Licensing.

Illinois rejected a proposed Administrative Procedure Act, and Colorado rejected a revision which the State Bar seemed to believe was urgently needed.

Wisconsin adopted legislation limiting the liability of municipal corporations.

Wyoming adopted provisions similar to those existing in many States without Administrative Procedure Acts, and which are limited to procedures applicable to rulemaking.

Oregon apparently clarified its position with respect to the exclusivity of the judicial review provision of its Administrative Procedure Act, and adopted one of the most curious provisions known to this reporter. It is best described as a legislative "ombudscommittee" with no power substantively to deal with administrative rules, but with the obligation to report, upon the com- plaint of any objector, its views as to whether the rule adopted by the administrative agency is substantively and procedurally without blemish.

New York has charged its Law Revision Commission with the

Administrative Procedure Act. Model State Administrative Procedure Act, 9C Uniform Laws Ann. 173 ff. (1957); Revised Model State Administrative Procedure Act, Handbook of the National Conference of Commissioners on Uniform State Laws 206-223 (1961). In any given state adopting an administrative procedure act, the influence of either the Model Act or the Revised Model Act is difficult to measure unless the observor is personally acquainted with the events and the per- sonalities involved. One of the best appraisals of both the qualitative and quantita- tive effects of the Model Acts in the different states is contained in a footnote to Professor Merrill's recent appraisal of the events in Oklahoma. Merrill, Oklahoma's New Administrative Procedure Act, 17 Okla. L. Rev. 1, 2 (1964).

2S.B. 1216, Illinois Legislature, 1963-64. Report of Professor Rubin G. Cohn, Uni- versity of Illinois. It should be noted that Illinois enacted a statute in 1947, but this dealt only with judicial review. 111. Rev. Stat. c. 110, §§264-279 (1951), 111. Stat. Ann., t. 110, §§264-279 (1956). Comment, Illinois Administrative Review Act, 42 111. L. Rev. 636 (1947).



74 SECTION OF ADMINISTRATIVE LAW

responsibility of making a study, report, and recommendations with respect to administrative procedures in that State, and Tennessee, which only recently created a Law Revision Commis- sion, has assigned administrative law reform as one of the Com- mission's first tasks.

On the case law side, the scope of the authority of local zoning boards continues to be a troublesome issue, and the courts seem to be making little progress in developing objective or conceptual standards which better identify the perimeters of the substantive authority exercised by such boards.

Intra-administrative litigation provoked interesting questions in both Alabama and North Carolina and, as this reporter has suggested elsewhere,3 important policy questions lie behind the problem of whether a subordinate or collateral board or officer has standing to challenge decisions of administrative authorities.

Another curious contemporary phenomenon on the State scene is the vigorous reappearance of a separation of powers argument which is the exact opposite of that which has often dominated the thinking of State court judges. In the past it is no secret that State Courts have tended to make the "no delegation," 4 Morgan II* and Ben Avon 6 doctrines the measure of the administrative law universe. And, despite the fact that many state courts accepted the rule of Federal Radio Commission v. General Elec. Co.1 to the effect that a de novo review of non-judicial action would be unconstitutional, many state courts have not hestiated to sub- stitute their own judgments for those of administrative agencies in situations where the issues were clearly legislative or policy.8

s Davis, Standing of a Public Official to Challenge Agency Decisions, 16 Ad. L. Rev. 163 (1964).

4£.g., Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960); Worzella v. Board of Regents of Educ, 77 S.D. 441, 93 N.W.2d 411 (1958); Village of Plain v. Harder, 268 Wis. 507, 68 N.W.2d 47 (1955).

5 Morgan v. United States, 304 U.S. 1 (1937). This case was perhaps expanded beyond the perimeters of its logic in Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954), but recent developments indicate that "Mazza" is a long way from being in the "cold, cold, ground." Des Plaines Currency Exchange v. Knight, 29 I11.2d 244, 194 N.E.2d 89 (1963).

β Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920). The literature tracing the vitality of the "independent review" doctrine of Ben Avon in the various states is voluminous. See Gellhorn and Byse, Administrative Law: Cases and Com- ments 480-481 (4th ed. 1960).

7 281 U.S. 464 (1930). 8 E.g., Penn. State Board ot Med. Educ. v. Schireson, 360 Pa. 12y, 61 A.2d 343 (1948).




Recently, in Texas and in Kentucky, however, a revival of the theory that de novo review is unconstitutional has been utilized to nullify legislative extensions of the scope of review, thereby suggesting that the doctrine of administrative finality is in part, at least, constitutionally entrenched.

A State by State survey follows: 1. Alabama. Intra-agency litigation between tax-collectors and

tax tribunals produced a victory for administrative finality. In State v. Southern Elec. Generating Co.,9 the Alabama Supreme Court held that the state Tax Commission's ruling that interstate sales of electricity were immune from local taxation was binding on the court. In a subsequent case, however, the same court indicated that such administrative interpretations were entitled only to "great weight." 10

The cases are discussed in the Alabama Law Review. xx The Alabama court, however, did not deal with the question of

"standing," which was a critical factor in the North Carolina case referred to below.12

2. Arizona. Arizona legislation authorizing administrative suspension of drivers' licenses for "frequent" and "serious" offenses was sustained in the face of charges that the flexibility of these standards in effect amounted to an unconstitutional delegation of legislative authority to the highway department.13 The point system which the Department had adopted in the implementation of its responsibility was also upheld as amounting to a "policy" or "rule of thumb" which did not exclusively dispose of rights because of the hearing granted to motorists after the suspension and the ultimate right of appeal.14

3. Arkansas. A comprehensive and detailed administrative procedure act was adopted by the Arkansas legislature, but its application is limited to occupational licensing authorities.15 The significance of the legislation lies in its implicit recognition, long noted by academics, that administrative regulation and control

9 274 Ala. 668, 151 So.2d 216 (1963). io Haden v. McCarthy, 275 Ala. 76, 152 So. 2d 141 (1963). ii Note, 26 Ala. L. Rev. 97 (1963). is In re Halifax Paper Company, Inc., 259 N.C. 589, 131 S.E.2d 441 (1963). is state v. Birmingham, y5 Ariz. 310, 3yo l'2d 103 (Iyö4). ι* Many states have upheld both point systems and summary revocation procedures

provided a hearing on the factual basis for the action is speedily available. Ε.<ζ., Spurbeck ν. Station, 252 Iowa 270, 106 N.W.2d 660 (1961). is Ark. Stat. Ann. §§ 5-701-5-725 (Supp. 1963).




of individual enterprise, occupation, or recreational activities present special problems not necessarily arising in other areas of administrative action.

4. California. The independence of trial examiners has been augmented, and substantial progress made towards establishing an office of administrative procedure.16

Useful articles appeared on the procedures followed by Boards of Equalization in California,17 on the practices and procedures of the California Department of Motor Vehicles and on occupational licensing in California.18

5. Colorado. In an en bane decision the Colorado Supreme Court held that while the legislative authority to deal with public utilities was complete, rules determining who was entitled to appear before the public utilities commission on behalf of those affected by its actions could not constitutionally derogate from the Supreme Court's authority in this regard.19 Accordingly a Pub- lic Utilities Commission rule which would permit laymen to represent persons before the Commission was held invalid.

A proposed complete revision of the existing State Administra- tive Procedure Act failed of adoption.20

6. District of Columbia. The Zoning Board of Adjustment granted an exception in order to clear the way for the construction of the Soviet Embassy. The decision was later impeached and declared null and void because of extra-record influences and communications from persons high in the federal government who wished the authorization cleared. In reversing, the court admitted that it had to go beyond a "record" which was ex facie "clean," but conceded that the charges, here, related to the institutional capacity of the Board to make a valid decision and warranted the inquiry.21

(Ed. note: One of the persons charged with making these extra- record communications was Mr. Charles E. Horsky, noted de-

16 Newman, Progress in California: Independent Trial Examiners and the Office of Administrative Procedure, 16 Ad. L. Rev. 243 (1964).

17 Early, Local Equalization Practice in California, 4 banta Clara Lawyer 14/ (1964). is Pricer and Wyckoff, Practices and Procedures of the Department of Motor Vehicles, 14 Hastings L.T. 355 (1963); Symposium, 15 Hastings L.J. 237 if. (1964).

i9 Denver Bar Association v. Public Utilities Comm., 391 P.2d 467 (Colo. 1964). so H.B. 69, Colorado Legislature, 1963. Report from Dean Al Menard of the

University of Colorado School of Law. 2i Jarrott v. Scrivener, 225 F. Supp. 827 (D.D.C. 1964).




fender of the economic utility of the geographical position of the Washington lawyer).22

In another zoning decision of some interest, the District of Columbia court has held that the denial of petition to rezone must be accompanied by findings of fact justifying the refusal.23 This represents a further limitation of the doctrine perhaps too cava- lierly formulated by Mr. Justice Brandeis in Pacific States Box and Basket v. White 2i that the agency's making of a determina- tion carried with it the presumption that the decision was within its authority and otherwise justified.

In Shulman v. Washington Hospital Center 25 the District Court made what promises to be a controversial decision in the smolder- ing disputes between medical practitioners and the governors of the boards of the hospitals access to whose facilities may be indispensable to the practitioner's livelihood. In this case the court held that it could not review the denial of access where access was not entrenched in some formal preceptorial document such as a statute, ordinance, charter or contract.

7. Georgia. The most significant legislative development in Georgia was the adoption of an Administrative Procedure Act which incorporates features of both the Model State, the Revised Model State, and the Federal Administrative Procedure Act.26

Detailed analysis of the Georgia statute must be deferred to a later time. The most significant features are:

(1) Its exclusion from coverage of thirteen agencies, including the Public Utilities Commission, the Workmen's Compensation Board, any authority concerned with the regulation of liquor or alcoholic beverages, all educational institutions, and all "Public Authorities" (presumably such recreational authorities as Jekyll Island and Port Authorities);

(2) Exclusion of "rate making" and "price fixing" from the 22 "Any Washington lawyer who is worth his salt and who has practiced in

Washington for any length of time will have at least a speaking acquaintance with many of the staff in any agency where he may specialize. . . . That status will give him undoubted advantages. . . ." Horsky, The Washington Lawyer 154-155 (1952).

23 Donovan v. Clark, 222 F. Supp. 632 (D.D.C. 1963). 2i "But where the regulation is within the scope of authority legally delegated,

the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies." Pacific States Co. v. White, 296 U.S. 176, 186 (1935).

25 222 F. Supp. 59 (D.D.C. 1963). 26 Ga. Laws 1964, No. 838.




classification of "contested case," which reduces procedural formalities for these functions;

(3) Elaborate procedures for rule-making, including a curious provision which permits summary declaratory judgment action with respect to a given rule without the need for exhaustion of administrative remedies.

A peculiar amendment to the Georgia Workmen's Compensa- tion Act was enacted by the 1963 legislature which has been virtually unnoticed.27 The effect of the amendment is to impose a much stricter standard of proof upon the claimant when the disability results from a malfunction of the heart. In effect it denies any claim based upon a heart malfunction unless shown by a "preponderance of competent and creditable evidence that (the heart malfunction) was attributable to the performance of the usual work of employment." The amendment was not incorpo- rated into those provisions of the law dealing with the standards of evidence or proof, but in that provision which defines "injury."

A further amendment to the Workmen's Compensation Act which would have transferred appeals from the Board to the Court of Appeals instead of to the Superior Courts was declared unconstitutional.28

Among the less routine cases was a decision denying to the State Board of Education (consisting of 10 members) power to reverse an earlier decision (made on the basis of a 4 to 4 vote) by which it had upheld the dismissal of a school superintendent.29 At the subsequent meeting of the State Board of Education, all ten members had appeared and the vote contained a majority for re- versal.

The majority classified the function of the Board as "judicial" and that the only remedy available to those aggrieved was "cer- tiorari."

The dissenters denied that the legislature or the constitution requires the validity of administrative action to be determined by reference to such formalisms.

A useful summary of Georgia administrative law developments is published each year by Western Reserve's Professor Maurice Culp, and appears in the Mercer Law Review.™

27 31 A Ga. Code Ann. § 114-102 (1963). 28 31A Ga. Code Ann. §114-710 (1963 Supp.). Baggett Trans. Co. v. Barnes, 108

Ga. App. 68, 132 S.E.2d 229 (1963). 29 Murdock v. Ferkins, Ι3ί> b.^za »by (Lra. iyt>4). so Culp, Administrative Law, 15 Merc. L. Rev. 1 (1963).




8. Illinois. In First National Bank and Trust Co. v. Evanston/1 the Illinois Supreme Court made it clear that recent legislative changes limiting its compulsory appellate jurisdiction could not automatically be avoided by allegations of unconstitutional con- fiscation. Involved here was a zoning decision, and the Court made it clear that henceforth the jurisdiction of the Court for direct review would not be available where no substantial constitutional issue was raised.

A case of much more general interest, however, is Des Plaines Currency Exchange v. Knight/2 which is a re-enactment of the hearing officer dialogue provoked by Justice Vanderbilt's decision in Mazza v. Cavicchia 33 some years back.34 The case involved an application for a license to run a currency exchange. The licensing authority had appointed an officer to make an investiga- tion and hear the evidence. A license was issued, but a competitor sought to impeach the issuance on grounds that the hearing officer had exceeded his authority by making conclusions and recommendations, and that his report had never been served on the competitor. The majority did not regard the hearing officer's conclusions and recommendations as having polluted the ultimate decision. Finally, it disposed of the second issue by pointing out that there was no evidence that the competitor couldn't have gotten a copy of the report had he asked for it.

What makes this decision interesting is that the majority take the same position argued for by Gellhorn and Byse,35 while Justice Walter Schaefer, in dissent, adopts the Vanderbilt- Schwartz 36 lines on this issue.

A further mystery remains, although it may be explainable in terms of local interpretations of Illinois' Administrative Review

3i 30 111. 2d 479, 197 N.E.2d 705 (1964). 32 29 111. 2d 244, 194 N.E.2d 89 (1963). 33 15 N.J. 498, 105 A.2d 545 (1954). 34 Compare Davis, New Jersey's Unique Conception of "Fair Play" in the Adminis-

trative Process, 10 Rutgers L. Rev. 660 (1956) with Schwartz, Institutional Adminis- trative Decisions and the Morgan Cases: A Re-examination, 4 J. Pub. Law 49 (1955).

35 Gellhorn and Byse, Administrative Law: Cases and Comments 1058-1062 (4th ed. 1960).

36 The opinion in Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954), was authored by the late Chief Justice Arthur Vanderbilt, and reflected his strong opinions with regard to the availability of the examiner's report. The evangelical nature of his assertions is well attested by the prompt use of the opinion by Professor Schwartz in a bid to British countries to reject the contrary views expressed in Local Government Board v. Arlidge (1915) A.C. 120. Schwartz, Comment, 33 Can. B. J. 223 (1955).




Act.37 At the federal level and in many states, a competitor does not have standing to challenge administrative action which cur- tails his own market advantage or has the effect of strengthening a rival, unless the legislature has clearly authorized the utilization of this competitive disability as a credential for being a "private attorney-general." 38 Whether or not the already established currency exchange enjoyed this status under Illinois law does not appear in the opinion, but it is clear that, other things being equal, the challenger would ordinarily not have had standing to raise this issue.

9. Indiana. Although published over one year ago, two excellent studies of Rule Making and Judicial Review in this State are available.39

10. Kentucky. In two cases decided by the Kentucky Court of Appeals, the inadequacy of a doctrinaire solution to the scope of review problem was once again demonstrated for the benefit of any who may not as yet be convinced.

In American Beauty Homes v. Louisville40 the court upheld administrative denial of a requested zoning change, despite the fact that a statute required a "de novo" trial of these issues in the Circuit Court. The Kentucky Court of Appeals ruled that while the statute was valid insofar as it conferred review of "legal" issues, it was invalid insofar as it attempted to clothe the court with a capacity to resolve issues of policy which had been confided by the legislature to the administrative agency.

In Board of Educ. v. Chattin 41 the issue was the legitimacy of a teacher-dismissal. The Circuit Court had reversed the judgment of the school board, and found the charges and the proof in- sufficient to justify dismissal. The Court of Appeals reversed the Circuit Court and upheld the discharge. In so doing it appeared to utilize the holding in American Beauty as warranting a construction of the appropriate statute under which the teacher had sought review as far narrower than had previously been thought to be the case. Former cases had apparently employed the "clearly

37 m. Rev. Stat. Ann. §§ 110-264-275 (1956). See note 2, supra. 38 See Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694 (2d Cir.

1943). 39 Dionisopoulos, Procedural Safeguards in Administrative Rule Making in Indiana, 37 Ind. L.J. 423 (1962); Note, Judicial Review in Indiana, 37 Ind. L.J. 2.59 (1962).

40 379 S.W.2d 450 (Ky. 1964). 4i 376 S.W.2d 693 (Ky. 1964).




erroneous" test for measuring the Circuit Court's revisionary powers, whereas under the present case, the narrower "substantial evidence" test is to be employed.

In a third case, significant because of the increasing use of reciprocal arrangements between our various states, the Court of Appeals upheld the authority granted by the legislature to the Commissioner of Economic Security under which he was em- powered to enter into arrangements with other states regarding the payment of unemployment compensation benefits.42 The authority had been challenged on the ground that it was an unconstitutional delegation of legislative authority.

The case has a significance, however, which transcends the tired and pedestrian legal issue with which it dealt. The opinion may well be the most outstanding treatment of the delegation problem to date and is evidence that the experience acquired by the federal judiciary over twenty years ago is finally being utilized by state judges. One short quote will explain this:

We have decided we will meet this problem with full recognition that legislative power often has been delegated, with full court approval, and it is not necessary to disguise such action in form of expression or words which have no verity.43

11. Louisiana. The owner of an oil business not subject to the State Public Service Commission but whose costs were affected by the Commission's tariffs, successfully petitioned for a change in those tariffs. The question was whether the Public Service Com- mission was exhibiting true fidelity to the "general public interest" when its discretion had been moved by the initiative of a private person not subject to its jurisdiction. The Supreme Court of Louisiana held that where rule-making had been precipitated by a person only indirectly affected by the Commission, the rule was not, for that reason alone, ultra vires, and remanded the case.44

The case presents the question of whether there is a "standing" requirement with respect to "rule making." Unfortunately, however, the case is another illustration of how unrelated the academic question may be to the actual facts, and how form can obscure the true nature of the adversary process.

42 Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584 (Ky. 1963). 43 Id. at 589. 44 Louisiana Tank Truck v. Louisiana VSC, 244 La. yuy, 155 So. 2d 15 (iyö3).




Like the famous Isbrandtsen odyssey,45 this was essentially a dispute between a cartel and an independent. The independent bought oil and trucked it himself, receiving a rebate on the pur- chase price equivalent to that part of the delivered price attributable to transportation costs under the prevailing PSC tariff. The cartel had previously petitioned the Commission to reduce the rate to such a point that the independent's rebate would be so small as to lead him to discontinue trucking oil himself - thereby forcing him to give his business to the cartel. The Commission had done this - whether unwittingly or not is difficult to say. The point is, however, that the Commission subsequently rescinded this low rate at the instance of the independent, thereby giving rise to the present litigation.

The case is an unfortunate example of how a rate-making body's authority can be exploited by parties engaged in an economic war unrelated to the public interest. For this reason the solution given by the court to the question of who has standing to invoke the rule-making process may not be reliable.

12. Maine. In 1961 Maine adopted a comprehensive Admin- istrative Procedure Act under the title "Administrative Code." 46 In 1963 substantial revisions were made in the Act.47

The case of In re Bangor & Aroostook Ry. Co.48 covered a broad range of administrative law issues. The Supreme Judicial Court of Maine affirmed the Public Utilities Commission's refusal to permit its decision to be influenced by extra-record facets; declared that the expression "public interest" was broader and encom- passed more subtle considerations than the expression "public convenience and necessity" (thereby investing the PUC with more discretion); ruled that to consider objections made by a person protesting the expansion of a certificate of convenience and necessity, such a person must show that he is aggrieved; and held that a person seeking the grant of a certificate must bear the burden of proving that the public interest requires it.

13. Maryland. An excellent survey of administrative law problems in Maryland has recently been published.49

14. Michigan. The legal aspects of Michigan's professional and 45 Federal Maritime Board v. Isbrandtsen, 356 U.S. 481 (1958). See Waiden, The

Dual Rate Moratorium - End of the Isbrandtsen Odyssey, 10 J. Pub. L. 78 (1961). 4« Me. Laws 1961, ch. 394, 20A Me. Rev. Stat. Ann. §§ 1-14 (1963). 47 Me. Laws 1963, ch. 412. 48 159 Me. 86, 188 A.2d 485 (1963). 49 Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1 (1964).




occupational licensing boards are the subject of an important recent publication.50

15. New Jersey. When administrative action vitally affecting the personal liberty or economic potential of the person or business is to be made on the basis of formal records or data not introduced as evidence, we say that it offends due process not to afford the parties an opportunity to explain, impeach, or object to the use of such materials. Yet we frequently permit ex parte use of official records by private persons or organizations who use these records to make decisions just as vital as those of the agency. In what appears to be an ominous decision, the New Jersey Superior Court, in Accident Index Bureau v. Hughes 51 struck down a rule of the State Workmen's Compensation administrator which sought to deny access to its official records by private agencies who are in the business of making ex parte evaluations at the request of prospective employers.

Although not published within the past year, a useful discussion of judicial review of administrative action in New Jersey appeared in 1963.52

16. New York. The New York Law Revision Commission has been assigned the task of making a comprehensive study of New York State Administrative Procedure.

Local zoning was thoroughly examined in a Note appearing in the Syracuse Law Review.™

The peculiar review procedures under Article 78 of New York's Civil Practice Act were thoroughly examined in the St. Johns Law Review.**

Problems incident to the judicial enforcement of administrative subpoenas were examined and criticized in the Albany Law Re- view.™

17. North Carolina. The North Carolina Supreme Court upheld the standing of the State Commissioner of Revenue to challenge a decision adverse to the State by the Tax Review Board.56

Γ·ο Eley, Michigan's Professional and Occupational Licensing Boards, 41 U. Dct. LJ. 347 (1964). si 83 N.T. Super. 293, 199 A.2d 656 (1964).

52 Thomas, New Jersey Administrative Law, 8 Vill. L. Rev. 1 (1962). 53 Note, 15 Syracuse L. Rev. 60 (1963). 54 Weintraub, Statutory Procedures Governing Judicial Review of Administrative Action, 38 St. Johns L. Rev. 86 (1963). 5"> Blake, Administrative Subpoenas, 27 Albany L. Rev. 239 (1963).

sain re Halifax Paper Company, Inc., 259 N.C. 589, 131 S.E.2d 441 (1963).




This case is critically discussed in the Administrative Law Re- view.57

1 8. Ohio. Recent Ohio developments are summarized by West- ern Reserve's Professor Maurice Culp in the Western Reserve Law Review.58

19. Oklahoma. Oklahoma adopted, after 16 years of advocacy from responsible sections of the bar, an Administrative Procedure Act based roughly on the Model Act.59 Like Georgia, however, Oklahoma deliberately excluded some important agencies from its coverage, although the surgery was not nearly so disabling as that which occurred in Atlanta.

In his masterful discussion of the new Act, Professor Maurice Merrill discusses the background for the exemptions accorded to the State Highway Commission and the State Public Welfare Commission and exposes the sordid arguments advanced by those agencies before the legislature in their bids for exemption.60

On the case-law side, Oklahoma sided again with Alabama and North Carolina in permitting a decision of one of its administrative agencies to be challenged by a subordinate public agency without considering the basic policy question behind the exten- sion of standing to such an agency.61

In this case the Trustees of the Pension and Retirement system had granted a retired policeman his pension, even though his retirement had been precipitated by conviction of a crime. The City of Tulsa appealed, and the Oklahoma Supreme Court reversed.62

The case is significant not only because of the questionable standing issue, but because it is another example of an administrative infliction of punishment beyond that which is specifically authorized by the criminal law - an issue which the author has suggested will become increasingly important in the "positive" State.63

20. Oregon. An incongruous construction of the judicial re-

5 7 Davis, Standing of a Public Official to Challenge Agency Decisions, 16 Ad. L. Rev. 163 (1964).

58 Culp, Ohio Administrative Law and Procedure, 14 Wes. Res. L. Rev. 765 (1963). 59 Okla. Laws 1963, ch. 371, 75 Okla. Stat. §§ 301-25 (Supp. 1963). 60 Merrill, Oklahoma's New Administrative Procedure Act, 17 Okla. L. Rev. 1, 5-7

(1964). 6i City of Tulsa v. Board of Trustees of Police Pension, 387 P.2d 255 (Okla. iy63). 62 Id. 63 Davis, Veterans' Benefits, Judicial Review, and the Constitutional Problems of

Positive Government, 39 Ind. L.J. 183, 224-227 (1964).




view section of Oregon's administrative procedure act 64 produced an equally incongruous defense,65 forcing Professor Hans Linde to arise in support of the voice of reason in that State.66 At issue was the exclusivity of the procedures for review set forth in the Oregon APA where an earlier statute conferred its own unique procedure. The Oregon Supreme Court had interpreted a provision intended to preserve nonreviewability ("Except as otherwise provided . . .") as intended to preserve parallel reviewability.

According to a correspondent at the Oregon Law School, the provision has been amended in order to resolve the difficulty, but the author's copy of the Oregon Revised Statutes, although noting an amendment to that section of the APA in 1963, fails to show a change which would prevent their construction.

The 1963 session of the Oregon legislature did establish a curious institution, however, which can be best described as a "Legislative Ombudscommittee." 67 (The author is aware of the absurdity inherent in a literal translation of this expression, but suggests that the term "ombuds" has acquired a secondary and entirely new meaning in the Anglo-American world.)68 The function of this new committee is to receive individual complaints about rules promulgated by Oregon's administrative agencies and to render opinions with respect to the fidelity to legislative inten- tion and mandatory procedural requirements exhibited by such rules. The Committee has, apparently, no power to impeach or modify the validity of the rule, although the psychological effect of its pronouncements could be of considerable weight. This prompted the fanciful nick-name for the Committee.

21. Pennsylvania. A federal-state power struggle of the kind most often associated with a Southern state developed this year in Pennsylvania.

The circumstances were prosaic enough. The Pennsylvania Railroad sought permission to abandon one of its lines from the

6'i Ore. Rev. Stat. §183.480 (1963). The case construing the statutory provision was Wampler v. Dep't. of State Police, 224 Or. 439, 355 P.2d 238 (1960). See Linde, Public Law- 1960 Oregon Survey, 40 Ore. L. Rev. 249 (1961).

es Adams, Wampler v. Dep t. of State Police: Opportunity, Not Disaster, 41 Ore. L. Rev. 118(1962).

66 Linde, 1 he Wampler Disaster- Λ Reply, 41 Ore. L. Rev. 177 (iy<^). 67 ure. Rev. Stat. §§ 171./U5-71U (iyb3). 68 The literature on the "ombudsman" has been voluminous. E.g., Hurwitz, Den-

mark's Ombudsman, 1961 Wis. L. Rev. 169; Comment, Ombudsman in New York? 27 Albany L. Rev. 84 (1963).




State Public Utilities Commission. Permission was apparently denied in no uncertain terms. Thereafter, the Pennsy attempted to end-run this denial by invoking a provisional procedure available under the Interstate Commerce Act, and when the State Commission gave indications of being somewhat unimpressed by this federal shield, the Pennsy sought an injunction against the State Commission in federal court.69

The federal court, indicating once again that railroads never needed civil rights legislation, simply said that the petition stated a cause of action, but final disposition of the controversy had not been made at the time this report was written.70

In a difficult decision requiring the application of a statutory term to a unique fact situation, the Pennsylvania Supreme Court ruled that an employee who, under a union contract which requires him to surrender his job to another person when his income from that job reaches $5,000 in any given year, is not ' "unem- ployed" in the sense that he is entitled under the statute to unemployment benefits.71

A reappraisal of the "opportunity to be heard" question with respect to license issuance - a subject which received classic treatment from Professor Clark Byse some years back 72 - appeared recently in the Dickinson Law Review,73 as did a discussion of the reviewability of "final" decisions in Pennsylvania.74

Finally, the Temple Law Quarterly has published a lengthy and valuable discussion of Pennsylvania administrative procedure, workmen's compensation administration, and other functioning agencies in that State.75

22. Texas. The hot potato with respect to the allocation of primary responsibility for the development of standards to be utilized by Texas regulatory agencies has been changing hands fairly rapidly in Texas. In the recent case of Chemical Bank &

β9 The background of the controversy is discussed in Note, 1 1 1 U. Pa. L. Rev. 820 (1963).

70 Pennsylvania RR. Co. v. Sharfsin, 215 F. Supp. 493 (M.D. Pa. 1963). 7i Department of Labor and Industry v. Unemployment Compensation Board,

201 A.2d 310 (Pa. 1964). 72 Byse, Opportunity to be Heard in License Issuance, 101 U. Pa. L. Rev. 57 (1952). 73 Dean, Opportunity to be Heard in the Professional Licensing Process in Pennsyl-

vania, 67 Dick. I. Rev. 31 (1962). 74 Reader, Judicial Review of "Final" Administrative Decisions in Pennsylvania, 67 Dick. L. Rev. 1 (1962).

75 Symposium, 36 Temple L.Q. 385-560 (1963).




Trust Co. v. Falkner 76 the Texas Supreme Court invoked the Texas Constitution in support of its decision pleading incapacity to deal with such issues.

The basic problem was a decision of the State's bank commissioner. The statute authorized a trial de novo with respect to his grant or denial of a charter. The Texas Supreme Court, in a decision consistent with one recently handed down in Kentucky,77 declared that the authority to conduct a de novo trial of these issues was an attempt to confer a legislative authority upon the court in defiance of the separation of powers principle in the constitution.

The case is nicely noted in the Texas Law Revietv/8 but for the basic and wide ranging policy squabble behind the decision, one must consult the earlier discussions in the Texas Bar Journal.79 A constitutional amendment which would have made the Falkner decision impossible had been rejected by the people at an election.

23. West Virginia. The major development in West Virginia was the adoption of an Administrative Procedure Act modelled after the Model State Act.80 Unlike the unhappy developments in Georgia and Oklahoma, West Virginia exempted only its Board of Probation and Parole.

A very fine discussion of the West Virginia Act was prepared for the West Virginia Law Review by Mr. Charles M. Harrison, Esq., of the West Virginia Bar.81

24. Virginia. Significant developments in Virginia are re- ported each year in the Survey section of the Virginia Law Re- view.

According to Professor McFarland, who is responsible for these summaries, the most significant cases have involved amendments or interpretations of the scope of certificates of convenience and necessity for transportation companies.82

76 369 S.W.2d 427 (Tex. 1963). 77 American Beauty Homes v. Louisville, 379 S.W.2d 450 (Ky. 1964). 78 Note, 42 Tex. L. Rev. 538 (1964). See also, Comment, Judicial Review of Ad-

ministrative Action, 40 Tex. L. Rev. 992 (1962), containing some interesting background information behind the litigation.

79 Winters, Administrative Practice in Texas, 26 Tex. B. J. 925 (1963); Roberts, The Trial of Administrative Appeals, 26 Tex. B.J. 731 (1963).

so w. Va. Laws iyö4, eh. 1. si Harrison, The West Virginia Administrative Procedure Act, 66 W. Va. L. Rev.

159 (1964). »ζ Mc* ariana, Administrative Law ana Municipal corporations - Annual Virginia

Survey, 49 Va. L. Rev. 1388 if. (1963).




Professor McFarland also notes the curious fact that virtually no litigation at all has arisen under the Virginia Administrative Agencies Act,83 which was the subject of a comprehensive analysis in a previous issue of the Virginia Law Review.84

25. Wisconsin. The Wisconsin Law School reports that the chief development in Wisconsin was a statute which places mone- tary limitations on municipal liability, extends some immunities, and imposes additional mandatory procedural requirements upon the maintenance of damages actions.85

26. Wyoming. The Wyoming legislature adopted a statute which is not uncommon in states without administrative procedure acts, and which establishes formal requirements which must be met before rules achieve legal validity.86 (In South Dakota, which has comparable legislation,87 the effect of such a statute was to terminate all administrative rule-making, as such. Instead of making rules, the agencies now adopt "resolutions" or "policies.")88

In Marathon Oil Co. v. Welch 89 the Wyoming Supreme Court was faced with the classic type of conceptual problem which has tickled the fancies of case-book authors for about thirty years.90 The question was whether a boundary change which varied the appellant's tax liability was effective where the agency in question gave the appellant no notice or opportunity to be heard. The majority said it was "legislative" and voted Bi-Metallic.91 The

83 Va. Code Ann. 88 9-6.1-9-6.14 (Supp. 1956). s* McFarland and Boyd, The General Administrative Agencies Act, 46 Va. L. Rev.

808 (1960). 85 Wis. Laws 1963, ch. 198. se Wyo. Laws 1963, ch. 83, Wyo. Stat. Ann. 88 9-379.1-379.2 (Supp. 1964). st S.D.C. §65.0106(1939). 88 The precepts supposedly governing academic tenure, and which in part pro-

voked the controversial litigation and AAUP censure, were embodied in "policy" statements made by the South Dakota Board of Regents. See Worzella v. Board of Regents of Educ, 77 S.D. 447, 93 N.W.2d 411 (1958); Byse, Academic Freedom, Tenure, and the Law, 73 Harv. L. Rev. 304 (1959); Davis, Enforcing Academic Tenure, 1961 Wis. L. Rev. 200.

89 379 P.2d 832 (Wyo. 1963). But see Bixby v. Cross, 384 P.2d 710 (Wyo. 1963), and especially Chief Justice Parker's dissent. Id. at 714-16.

90£.g., Jaffe and Nathanson, Administrative Law: Cases and Materials 526-539 (2d ed. 1961); Gellhorn and Byse, Administrative Law: Cases and Comments 732-740 (4th ed. 1960); Davis, Administrative Law Cases 135-139 (1959). 9i In the famous Bi-Metallic case Mr. Justice Holmes ruled that the administrative action was so general in application that notice and hearing were not indispensable procedural requirements for those adversely affected. Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915).




dissenters went Londoner 92 and Morgan IIP Mr. Justice Harns- berger filed a special concurring opinion in which he went Arlidge.9*

In another case the Wyoming Supreme Court refused to upset the grant of a variance by a local zoning board of adjustment, and accorded to such decisions a high degree of administrative finality.95

In 1962 the Wyoming Law Review published a comprehensive administrative law symposium which might serve as a model for other journals with similar ambitions.96

Professor Bloomenthal has also published a useful survey of Wyoming Administrative Law.97

General

Notable general discussions of state administrative law problems include a survey of the Revised Model State Administrative Procedure Act by Professor Bloomenthal,98 and a discussion of State administrative procedure by Professor Frank Cooper.99

An excellent and useful analysis of the Model Act, the Revised Model Act, and the various contexts in which they apply, has recently been published in the Cornell Law Quarterly.100

92 In the famous Londoner case, Mr. Justice Moody suggested that those adversely affected by administrative action were entitled to an oral hearing, especially in tax matters. Londoner v. City and County of Denver, 210 U.S. 373 (1908).

93 in the famous second Morgan case, Chief Justice Hughes established that the procedural safeguards guaranteed by the Constitution were not totally dependent upon the classification of "adjudicatory" or "quasi-judicial," but, under proper circumstances, would apply even where the administrative agency was acting "legislatively." Morgan v. United States, 298 U.S. 468 (1936).

94 In Local Government Board v. Arlidge, (1915) A.C. 120 a majority of the Law Lords, like Wyoming's Mr. Justice Harnsberger, thought that it would be highly desirable for the administrative agency concerned to extend certain procedural pro- tections to those affected by administrative action or rules, but that there was no sanction for imposing this procedure under the law.

95 Williams v. Zoning Adjustment Board, 383 P.2d 730 (Wyo. 1963). 96 Administrative Law Symposium, 16 Wyo. L.J. 216-335 (1962). 97 Bloomenthal, Administrative Law in Wyoming, 16 Wyo. L.J. 191 (1963). 98 Bloomenthal, The Revised Model State Administrative Procedure Act. 1963

Duke L.J. 593. 9« Cooper, State Administrative Procedure, 49 A.B.A.J. 29 (1963). 3-oo Comment, Administrative Procedure Legislation Among the States. 49 Cornell

L.Q. 634 (1964).



90 section of administrative law

Comment

In order to gather data and evaluations for this report, a very short questionnaire was sent to every state university law school dean in the country. In states with no state university law school, a private law school was arbitrarily selected. In states with no law school (E.g., Rhode Island) the questionnaire was sent to an attorney who is a member of the ABA Section on Administrative Law.

Replies were thoughtful and informative. However, only 26 of the 52 (we included Puerto Rico and the District of Columbia) post-card questionnaires were returned. This was partly due to the time of year, but, in view of the fact that none of the attorney- members of the ABA Section responded, this technique would seem to have serious limitations insofar as future research is concerned.



Documents

REGENT NOTEWORTHY ADMINISTRATIVE LAW DEVELOPMENTS IN SELECTED STATES