|
|
Examiner
  • Ken Garten: Not all laws originate with legislatures

    • email print
      Comment
  • Many years ago, when I was in my second year of law school at good old Mizzou, I was assigned the subject of administrative law as my second year writing project.
    This concerned me somewhat, because I wasn't exactly sure what administrative law was.
    In the years since, I have learned, starting with that second year writing project, and many times since through trying to help clients in a variety of settings and circumstances.
    Administrative law deals with the concept that not all government laws, rules and regulations are promulgated and administered by the legislature and the courts, but instead, there are numerous other government related bodies that also make and enforce rules and regulations that have the force and effect of law and are designed to affect, protect, and regulate our world.
    These bodies include the state Board of Healing Arts, which licenses, regulates, oversees, and disciplines medical professionals; the state Department of Health and Senior Services, which oversees and regulates numerous functions and personel such as nursing homes, immunization, and food safety; the Federal Aviation Administration, which regulates and licenses aviation, pilots, and the like; and even your local school board, which makes rules, policies, and decisions on education, educators, and a whole host of other matters, just to name a few.
    Because administrative bodies and agencies make and enforce rules and regulations that affect people's lives and livelihood, each has rules for review of its decision-making determinations where someone is aggrieved.
    And, each body has its own set of rules and procedures on how that review process takes place.
    For instance, a school superintendent's decision to expel a student is generally subject to an appeal for a hearing before the full school board.
    The suspension of a professional license is subject to review in a hearing determined by the rules of the regulating agency, be it the suspension, revocation or denial of the license of a doctor, a lawyer, a masseuse, a day care, a pilot, or an architect by the respective bodies charged with overseeing that occupation.
    What can be challenging for a lawyer trying to help a client in these settings is that each of the multitude of federal, state and local agencies has its own specific set of rules and procedures on how to appeal its decisions.
    Generally, agencies' decisions may be first appealed to a board or an administrative law judge who is a part of, and is often employed by, the very agency whose decision is being challenged and appealed.
    Perhaps not surprisingly, my experience is that when you challenge a decision of a government body or agency to a person or group of people who are part of that same agency for appellate review, one should not expect a review that is objective, impartial or fair.
    Page 2 of 2 - However, after a party that is aggrieved by such a decision has exhausted all of his remedies and appeals within the agency, he is entitled to judicial review of the decision in a court of law by filing suit under the Administrative Procedure Act, where the court then determines if the agency's determination is unsupported by competent and substantial evidence; is unauthorized by law; is arbitrary, capricious or unreasonable; or involves an abuse of discretion.
    This is typically, in my experience, the stage at which a fair and impartial review may be had, outside of the agency, and in a court of law.
    And so when a client appears to be getting the shaft from an agency or body of the federal, state or local government, a lawyer must dig in, review the rules of the agency, determine the steps to appeal the decision, and plan on getting fair and unbiased review only after the administrative processes are exhausted, and suit is filed in a court of law.
    Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com

        calendar