By Judge Kelly K. Yi
Other than a vague idea from law school that state agencies are in charge of interpreting and enforcing the statutes that govern their authorities and responsibilities, many lawyers know very little about the administrative law practice. However, they govern many aspects of our lives from business licenses to professional regulations to tax disputes, to name a few. There is a good chance you will have at some point in your career a client who needs help in dealing with state agencies.
To help our members to navigate better through a maze of regulatory governance, the WBAI recently presented a seminar on this very topic. A panel of three experienced Administrative Law Judges from di erent state agencies provided a general introduction to the practice and shared valuable insights to avoid pitfalls and successfully build your practice. In case you missed it, below is a brief coverage of the ten speci c areas of the discussion:
1. HEARSAY: Generally, administrative hearings are more relaxed than circuit court to allow the parties, especially pro se litigants, to present their case in a logical manner and not be bogged down by procedural matters. This means that hearsay is generally admissible and litigants are encouraged to present their cases without the technical concerns of laying a foundation and other rules. However, the degree to which hearsay evidence is admitted varies from agency to agency. If in doubt, o er evidence and, when appropriate, objections to preserve the rights on appeal.
2. DEADLINES: Although proceedings are more relaxed, certain deadlines apply for ling answers, discovery and pre-hearing motions. Be mindful of the strict deadlines for ling protests, appeals and Administrative Review.
3. MOTIONS: Know the types of pleadings and motions allowed. For example, most discovery provisions in administrative cases do not allow for interrogatories. Tailor your standard/template motions to refer to the language of the Administrative Rules and Statutes.
4. BURDEN OF PROOF: Be clear about which burden of proof applies. Depending on the issue or remedy, there could be both a preponderance and clear and convincing standards. As an initial matter, learn which party bears the burden, as some agencies have a prima facie case. In certain cases, documentary evidence must be presented to rebut the agency’s case.
5. CONTINUANCES: The administrative code still states that only an ALJ can determine whether or not a continuance will be granted. Attorneys shouldn’t assume that it will be granted, and then leave, just because an ALJ from the same agency might have granted a continuance in a di erent case. Also, some agencies have a formal procedure where the parties must le a written motion for continuance.
6. OPENING STATEMENTS: Do not waive your opening statement. During your opening arguments, state the facts of the case and establish the reason for the appeal. Even if an appeal has been postponed or continued multiple times, a di erent ALJ might end up hearing the case on the merits. As the ALJs often have a heavy workload, don’t assume they know the details of each case.
7. CONTINUITY OF DISPOSITIONS: If there is a companion case, i.e. criminal proceeding, update the ALJ on that matter. Do not assume the ALJ knows the status of a proceeding at another agency or jurisdiction. Bring copies of orders, sentencing orders or judgments that are related to the administrative case.
8. FEES: Some requests for hearings (Division of Banks and Financial Institutions, for example) require a ling fee. The matter will not be docketed without the fee. Failure to submit a fee with a hearing request has the same e ect as not ling a request at all.
9. EXHIBITS AND WITNESSES: Have exhibits marked and copied. Stipulate to admissibility with opposing counsel prior to the trial to streamline the process and to avoid unnecessary witnesses. A pre-trial order often serves to clarify the issues involving exhibits and witnesses. If unclear, request that terms be included in the pre-trial order.
10. READ THE ADMINISTRATIVE RULES: There are unique procedures for each Agency and sometimes for each profession, license, or remedy in the case of Professional Regulations. While most state agencies are bound by the Administrative Procedure Act (APA), 5 ILCS 100/1 et seq., some agencies are not, therefore, it is essential to read both the APA and the agency rules.
In closing, if there was an overarching theme to the many excellent insights the panel presented, it was the importance of studying both the APA and agency rules before embarking on an administrative hearing. For further clari cation on procedural issues, the panel recommended contacting ALJs directly at the appropriate agency.
Thank you to the panel and the many who attended for making this event a great success. We hope our membership take advantage of more programs of value planned in the near future.
Judge Kelly K. Yi is an Administrative Law Judge with the Illinois Department of Revenue.