INTRODUCTION TO ADMINISTRATIVE LAW

1. INTRODUCTION TOADMINISTRATIVE LAW Practice and Reality in the United States Presented at the John Paul II Catholic University of Lublin November, 2012

2. By way of introduction: My name is Mary Lynne Donohue. I am from Sheboygan,Wisconsin, on the shores of Lake Michigan.

3. Educational Background I graduated from the University of Wisconsin in Madison, with three degrees: a Bachelor of Arts degree in English literature in 1971, a Master of Arts degree in comparative literature in 1976 and my Juris Doctor degree in 1979. This is a picture of the center of the UW Campus in Madison, which has about 40,000 students.

4. Same Bascom Hill at the University of Wisconsin But with 30,000 people added for President Obama’s appearance on October 22, 2012.

5. The Final Electoral College Map With addition of Florida votes, Obama wins 333 Electoral College votes; Romney 206. Final popular vote totals: Obama—61,885,643; Romney—58,622,399.

6. Just a little bit about the Electoral College—losing the popular vote and still winning? Is this democracy?? • Each state has a number of electors equal to the number of its U.S. senators (two in each state) plus the number of its U.S. representatives, which varies according to the state's population. For example, Wisconsin has two senators and eight U.S. representatives for a total of tenelectoral votes. • Overall, the Electoral College includes 538 electors, 535 for the total number of congressional members, and three who represent Washington, D.C. In the 2012 presidential election, highly populated California had the most sway with 55 electoral votes; other less populated states, such as Montana, had as few as three electoral votes. • On the first Monday after the second Wednesday in December, the electors meet in their respective state capitals to officially cast their votes for president and vice president. These votes are then sealed and sent to the president of the Senate, who on Jan. 6 opens and reads the votes before both houses of Congress. The winner is sworn into office at noon Jan. 20

7. Election and Campaigning Crazy—Some pictures from the Democratic Headquarters in the days leading up to the election on November 6th.

8. Young and Old

9. Just a couple more…Students from Lakeland College, the “flashlight brigade,” going out at 5pm to make sure people had gotten out to vote!

10. I am “of counsel” at Hopp Neumann Humke, a general practice law firm. I have practiced many different types of law, but have focused much of my practice in administrative law, both at state and federal agencies.I am married to Tim Van Akkeren, who is a circuit court judge. My sons, Michael and Flan live in Milwaukee. Michael is studying to be a chef and Flan is a vegetable and fruit clerk.

11. A judge’s work in Sheboygan County • SHEBOYGAN, Wis. (AP) -- A judge has ruled a 13-year-old Sheboygan boy is competent to stand trial in the killing of his great-grandmother in September. • Judge Timothy Van Akkeren found the boy competent Friday, based on a court-ordered mental health evaluation. • The Sheboygan Press reports the boy's attorney, who requested the evaluation, did not challenge the ruling. • The boy and a 13-year-old friend are charged with first-degree intentional homicide for allegedly bludgeoning to death 78-year-old Barbara Olson at her Sheboygan Falls home on Sept. 17 with a hammer and hatchet. The boys are accused of ransacking Olson's house and stealing money to buy marijuana and pizza. • Attorneys for the other boy did not seek a competency evaluation. • The case now moves to a January hearing on whether to move the case to juvenile court.

12. Course Objectives • Learn some basic information about the American legal system and American lawyers. • Learn some basic information about the work of administrative agencies and the state and federal level. • Understand how administrative agencies interface with all three branches of government. • Learn how administrative agencies get their work done through rulemaking and adjudication. • Learn why lawyers are important to the proper functioning of the administrative system and the skills lawyers need to have to bring the best results for their clients.

13. Who Are American Lawyers? • All American lawyers must graduate from law school. • There are 193 American Bar Association (ABA) accredited law schools, including two in Wisconsin: University of Wisconsin in Madison, Marquette Law School in Milwaukee. • Except in Wisconsin, all law school graduates must take a bar exam, typically a 2 to 3 day exam. • Pass rates: • ABA accredited schools—68% • Non ABA schools—27% • Foreign lawyers—21% pass the California bar, 45% pass the New York bar. • Law School is expensive! • The typical debt for most graduating law students is about $150,000—about 450,000zl.

14. American Lawyers, continued • More than 1 million lawyers in the United States— • That’s one lawyer for every 300 Americans. • But only one lawyer for every 10,000 poor people. • Civil actions: more than 12,000,000/year • Criminal complaints: more than 1,200,000/year • Prison population: 2,200,000 • Death row: 3,300

15. What Do American Lawyers Do? • More than just sue people! • Yet, that is a big part of what many lawyers do: regular cases in personal injury (tort) and business/contract issues, municipal law, real estate/property. • Many approaches and forums: • Single or small group of plaintiffs • Class actions • Arbitration/mediation • Administrative actions • Bankruptcy court • Criminal prosecution and defense • Many lawyers do not work in courtrooms at all: • Lawyers for corporations (in-house counsel) • Lawyers who do pure transactional work • Lobbyists • Legislators • Teachers/researchers

16. How Do Lawyers Get Paid?(This is Important!) • Your client pays you, either an hourly rate, or fixed fee • Need to have a written fee agreement in most cases • Contingency fee • Salary: working for a corporation, legal services lawyer, district attorney, public defender, judge • The American rule: in most cases, each party pays his/her own legal fees, whether s/he wins or loses. There are some fee-shifting statues, e.g., suing the federal government. If you win on appeal, the government has to pay your fees.

17. First: Some Words About the American System of Government Americans have a wonderful and complex government, a democracy that grew out of oppression from the British Crown through the 1700’s. Our revolutionary war was eight long years, from 1775 through 1782. Often the revolution is the easy part; what happens after the oppressor is overthrown? Iraq? Egypt? Bulgaria? The first governing document was the Articles of Confederation. Fearful of too much power in one person or one governing body, the Articles gave the 13 states that made up the USA much power and the federal government (the government of the whole country) almost none. The federal government could not regulate commerce among the states, could not pass any legislation without 9 of the 13 states approving, could not tax its citizens (there was an uprising when the government could not pay the Army). The solution: the U.S. Constitution, a brilliant document when ratified in 1791 and through all of our history.

18. Preamble to the U.S. Constitution We the people of the United States, in order to form a more perfect union, establish Justice, insure the domestic tranquility, provide for the common defence, promote the General Welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.

19. Basic constitutional structure of U.S. government The U.S. constitution establishes three branches of government: Article I: legislative power in Congress Article II: executive power in the President Article III: judicial power in the federal courts This structure is known as the “separation of powers” doctrine.

20. What Branch Does What? • Executive Branch: • The president: • Propose the budget • Make appointments • Commander in chief of armed forces • Legislative Branch: • Senate (100) and House of Representatives (435) • Together they pass bills that become laws • Senate approves Presidential nominations— “Advice and Consent” • Judicial Branch: • Composed of three levels of courts: Supreme, Court of Appeals and District Courts

21. System of Checks and Balances

22. What are Examples of Checks and Balances? • Executive to Judicial: • President gets to nominate judges • Executive to Legislative: • President can veto Legislation • Judicial to Executive: • Court can declare Presidential act unconstitutional • Judicial to Legislative: • Court can declare legislative action unconstitutional • Legislative to Executive: • Controls the budget • Congress can override presidential veto • Senate can impeach President • Legislative to Court: • Controls the budget • Can impeach judges

23. Structure of the Federal Judiciary

24. Structure of Wisconsin Judiciary • Same three tiered structure as in the federal court system: • One Supreme Court with 7 Justices elected (not appointed) for 10 year terms. The Supreme Court, like the federal Supreme Court, only takes the cases it wants to review. • Four Courts of Appeal, geographically located throughout the state, each with 4 judges who are elected for six year terms. This is an error correcting court which reviews all final (and a few nonfinal) decisions that are appealed from circuit court. • Sixty-one Circuit Courts spread throughout the state, with 241 branches, each with its own judge.

25. Oops—not Paradise!Supreme Court Justice Chokes Another Justice • Supreme Court Justice Ann Walsh Bradley late Saturday accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office earlier this month. • "The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Journal Sentinel. • Sources told the Journal Sentinel two very different stories Saturday about what occurred. Some confirmed Bradley's version. According to others, Bradley charged Prosser, who raised his hands to defend himself and made contact with her neck. • A joint investigation by Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism first reported on the incident early Saturday, stating that Prosser "allegedly grabbed" Bradley around the neck. • Before Bradley spoke to the Journal Sentinel, Prosser issued a statement that said: "Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false. Until then I will refrain from further public comment." • A source who spoke to several justices present during the incident told the Journal Sentinel that the confrontation occurred after 5:30 p.m. June 13, the day before the high court's release of a decision upholding a bill to curtail the collective bargaining rights of public employees.

26. Things are not too good at the Wisconsin Supreme Court. • Supreme Court Justice Ann Walsh Bradley late Saturday accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office earlier this month. • "The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Journal Sentinel. • Sources told the Journal Sentinel two very different stories Saturday about what occurred. Some confirmed Bradley's version. According to others, Bradley charged Prosser, who raised his hands to defend himself and made contact with her neck. • A joint investigation by Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism first reported on the incident early Saturday, stating that Prosser "allegedly grabbed" Bradley around the neck. • Before Bradley spoke to the Journal Sentinel, Prosser issued a statement that said: "Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false. Until then I will refrain from further public comment." • A source who spoke to several justices present during the incident told the Journal Sentinel that the confrontation occurred after 5:30 p.m. June 13, the day before the high court's release of a decision upholding a bill to curtail the collective bargaining rights of public employees.

27. How Does the Review Process Work? • In almost all cases, the person appealing (the appellant) starts with the first level: • In federal system: the district court • In state system: the trial court • At this level, the judge will make findings of fact and conclusions of law. If there is a jury, the jury will determine the facts, and based on law presented (the jury instructions). • Now, you have an appealable decision. • Please note: in the federal system, if both parties agree, the case can be heard by a magistrate—a “junior” judge. If a party loses at this stage, he or she can request that the case be heard over (a “de novo” hearing) by a judge. • Where to next?

28. The First Step in the Appeal • The Court of Appeals— • This has the same name, both at the federal and state levels. • The Court of Appeals must review all cases that are appealed. In other words, the appellant has a “right of review.” • The review is not necessarily all the same, however. Cases are sifted through to see which ones are being appealed, but are not particularly important. These are reviewed by one judge, and the decision is not published. • More important cases are reviewed by bigger groups of judges—a panel: • In the federal system, there can be an appointed number per panel • In the state system, it is typically one judge or all of them (4)

29. The Second Step • The Court of Appeals will hear the case: this is not a “de novo” hearing—not another “kick at the cat.” • The Court will first review the briefs that the parties have submitted. • A brief: a party’s argument to the court consisting of : • A statement of the facts, with citations to the record • The issues presented for review • An argument regarding each issue with citations to the record.

30. Second Step continued • After reviewing the briefs, the Court will decide whether the case is important enough for oral argument. • This can be a little scary. • Then the Court will issue its written decision. • The decision can be either a published or unpublished decision. If the Court feels that it is a very important issue, it will order that the decision be published. If not, then it is not published. • Only published decisions can be cited as precedent—this is quite important.

31. I lost again! Now what? • In both the federal and state system, the last and final court to hear an appeal is the SUPREME COURT. • The Supreme Court only hears the cases that it wants to hear: there is no automatic right to review. • How do you persuade the Supreme Court to hear your case? • Writ of Certiorari (or Petition for Review): you argue to the Court that the issues in your case: • Are of exceptional importance—e.g., banning religious group from protesting at military funeral • There is a conflict among the circuits regarding a particular issue—e.g., an interpretation of insurance coverage for environmental disasters • The interests of justice demand it.

32. Supreme Court Process • Again, the parties submit written briefs to the Court. • But, there is almost always an oral argument before the Court. • This is really, really, really scary! • Supreme Court decisions are always published.

33. American JurisprudenceorHow do the Courts Make Their Decisions? • Two sources of law: • Common Law • Statutory Law

34. Compare and Contrast Common Law Statutory Law This is “judge made” law—a tradition from early English courts. The Courts made decisions on what they considered to be fair and correct in disputes where there were no written laws—for example, tort law. Now, many of our laws are in written form, debated and passed by legislatures and found in statute books, or in administrative rules. Courts will interpret the language of the statute, its legislative history to make decisions.

35. Examples • Common law concept of torts—wrongs done to a person based on intentional action or negligence. • Three elements: • Duty of care to another person breached • Causation • Damages • Many statutes now regarding torts: • Punitive damages • Comparative negligence/contributory negligence • Failure to wear seat belt • Still, the basis for all of this is in decisions made by courts over many years. • Statutory Law: • Now the basis for many, many decisions made by courts. • There are now many, many laws.

36. European v. American Judicial Review European American Issues are more abstract Appeal can be raised by a public official A case can be referred by a lower court to a higher court Law professors are involved in the process Appeal arises from ordinary litigation There must be a personal interest—standing Almost never a referral from a lower court to higher court No law professors Although there are “amicus curiae” (friend of the court) briefs

37. Principles of Jurisprudence • Here we talk about what basic framework judges use to make decisions. • Stare decisis—really the most important • Under common law, a guide for judges to insure consistency and predictability. • Even under statutory framework—people need to be able to rely on prior actions to know that it’s OK. • Sometimes decisions can be overturned—usually after many years, but for good reason: • Plessy v. Ferguson: separate but equal • Brown v. Board of Education: separate is unequal, segregation is illegal, no longer the law of the land.

38. Stare Decisis? Consider the Implications of Citizens United v. Federal Elections Commission • In a 5-4 decision, the U.S. Supreme Court ruled that corporations and unions have the same political speech rights as individuals under the First Amendment. It found no compelling government interest for prohibiting corporations and unions from using their general treasury funds to make election-related independent expenditures. Thus, it struck down a federal law banning this practice and also overruled two of its prior decisions. Additionally, in an 8-1 decision, the Court ruled that the disclaimer and disclosure requirements associated with electioneering communications are constitutional.

40. Principles continued • With respect to statutory law: • First, look at the language of the statute: • If it is not ambiguous, just interpret what the statute says. • Second, if it is ambiguous, look at the legislative history—statutory preamble, debate on floor of legislature • Third, if a statute can be interpreted without using constitutional interpretation, that should be done. • Other rules apply to interpretation of statutory rules when an agency action is involved. • Donohue rule: it’s very important to read the statute, over and over if necessary to see what it truly says and how it can be used to your advantage.

41. Principles continued • Avoiding constitutional construction: • This is a basic principle: if an appeal presents constitutional issues and non-constitutional issues, the court will first try to decide the case on the non-constitutional issues. If it cannot be done that way, then the court will rule on the constitutional issue. • The constitutional issue must be brought up at the first level, otherwise it cannot be discussed at the higher level. • The reason: we do not want lots and lots of courts making lots and lots of decisions based on the Constitution.

42. Federal and State relationships • The federal government and state governments have complicated interrelationships: • 10th Amendment to the Bill of Rights: “Powers not delegated to the United States by the Constitution are reserved to the States.” • Printz v. U.S. (1997) US Supreme Court case holds that Brady Handgun Violence Act unconstitutional because it requires states to do background checks on people buying guns—Court hold that federal government can’t require states to administer federal program. Compare with alcohol laws and highway funds. • Still, Courts have held that federal law preempts state laws in most cases. • States can be held accountable for their laws by the US Supreme Court which can find certain laws unconstitutional.

43. Summary to date • Being a lawyer in the US is an interesting (usually) but stressful job. It requires a lot of time, lots and lots of studying, and lots of money to get there. • The American system of government is brilliant (editorial comment). • Separation of powers • Checks and Balances • Interrelationship between federal and state governments • Structure of the Judiciary in more detail: • How most appeals are taken • The difference between European and American systems, particularly regarding constitutional interpretation • Source of American law in both common law and statutory law. • Principles of jurisprudence with respect to making decisions. • Interrelationship of state and federal governments.

44. First Things First: What is Administrative Law? Administrative law deals with the procedural requirements that administrative agencies must follow when they are taking action that affects private parties. These actions, which we will study in detail are primarily: Rulemaking Adjudication Attribution: much of the material in this outline is set out in Administrative Law, 3rd Edition, William F. Funk and Richard H. Seamon, authors

45. Why is it so important? POWER!!!!

46. Consider this: “Administrative law is like the air we breathe: invisible yet pervasive. Administrative agencies affect so many areas of our lives that we take them for granted. They are part of the atmosphere of modern life, and, like the physical atmosphere, they are necessary (at least in some form) to sustain modern life…” “If you care at all about how your government functions, you should care deeply about administrative law, because it governs most of what government does. It is all about power and how to control it.” William Funk, Richard Seamon, Administrative Law, 3rd Edition, 2009

47. Or This • “Administrative law, though often dreary, can be of huge importance to the day-to-day lives of Americans.” • Washington Post editorial, June 23, 2001

48. Just how pervasive? • Just a few of the administrative agencies in the Executive Branch: • Department of Defense • Department of Education • Department of Energy • Department of Health and Human Services • Department of Housing and Urban Development • Department of Homeland Security • Department of Justice • Department of Labor • Department of Energy • Department of State • Department of Transportation • Department of Interior • How about the Legislative Branch: • Architect of the Capitol • Congressional Budget Office • Government Accountability • Stennis Center for Public Service • US Botanic Garden • Government Printing Office • Library of Congress The Judicial Branch has a few and there are many, many independent agencies, commissions and committees.

49. And State Agencies As Well • The State of Wisconsin has many, many agencies as well that carry out the work of the Governor and Legislature: • Department of Workforce Development • Department of Administration • Department of Families and Children • Department of Natural Resources • Plus 68 more!

50. What Do These Agencies Do? • Agencies are the organizations that execute the laws that Congress passes. Examples: • IRS (Internal Revenue Service) collects taxes • EPA (Environmental Protection Agency) administers the Clean Air and Clean Water Acts • SSA (Social Security Administration) pays out Social Security benefits • OHSA (Occupational Health and Safety Administration) enforces Occupational Safety and Health Act • Agencies disburse entitlements (Social Security, Medicare and Medical Assistance); regulate private activity, such as FEC (Federal Election Commission) regulating elections, SEC (Securities and Exchange Commission) regulating security brokers, financial institutions. • Agency activities come from statutes.