Discovery and Judicial Review in State Administrative Practice
| Publication year | 1981 |
| Pages | 2490 |
1981, October, Pg. 2490. Discovery and Judicial Review in State Administrative Practice
House Bill 1476,(fn1) sponsored by Representative Christopher Paulson and enacted during the 1981 session of the Colorado General Assembly, together with earlier amendments to the State Administrative Procedure Act ("APA"),(fn2) has produced some important clarifications and changes to Colorado administrative practice, particularly in discovery and judicial review of state agency(fn3) rulemaking(fn4) and adjudication.(fn5)
Administrative practice in Colorado, as elsewhere in the United States, is rooted in three significant and intertwined products of twentieth century law---the doctrine of reasonable police power over the exercise of private property rights; the expansion of the commerce clause for regulatory purposes; and the growth of the administrative agency as law-maker, law-enforcer and law-interpreter.
The genesis of administrative practice was the reaction by the public to the impact of the entrepreneurial system upon the human, social and physical environment, which often has a peculiarly political cast. The legislature and the courts function essentially as overseers to an heterogeneous group of appointed policy-makers: a combination of lay men and women, professional planners, technicians, engineers, scientists, managers and government lawyers who, in the context of broadly stated goals and a varying sense of mission, have sought and obtained the power to influence, alter or determine the fate of private and governmental decision-making.(fn6)
Counsel's task in this milieu, whether representing government or private parties, is to understand the interests of the client, to determine if and how these interests can be forwarded, to counsel accommodation and/or behavior modification where appropriate, and generally to pursue a resolution favorable to the client, diligently and ethically.
The context in which the practitioner of administrative law works, as any other, is the law, the facts and the forum. The law determines what arguments should be made; the facts determine what argument can be made; the forum determines what argument will be made. The goal is to argue persuasively for the exercise of decision-making power in the client's favor. Normally, persuasive argument is that which appeals to the policy of the law, the equities of the client's cause and the decision-makers' sense of rightness and importance. Preparation and presentation, with enthusiasm and conviction, is the heart of persuasive argument. The effective use of expert witnesses can be indispensable.
The practice of administrative law is both challenging and frustrating because of the large measure of discretion given to administrative agencies and the general absence of evidentiary rules. The building
of the record to protect a decision in the client's favor is extremely important, but the protection of the record against whatever another party might wish to adduce is very difficult. The introduction of every conceivable assertion, document, diagram, letter, photograph, memorandum or statement is generally allowed.(fn7)
Hence, constitutional and statutory procedural protections found in the APA and in individual agency Acts have assumed great importance. Of primary importance, however, is the manner in which the agency views the substance of the presentation. The task, therefore, is to educate the decision-maker about the legal parameters of the case or proposed rule, through motions, briefs and oral argument, and the substantive issues, through written and oral presentation by witnesses. The tools for accomplishing this task are present in the APA.
Since special statutory procedures control over general statutory procedures,(fn8) such as the APA, agency enabling Acts should always be consulted. Some agencies have adopted rules of practice before the agency, including discovery procedures, which are in addition to the APA, and these should be closely read.
Decisions which enunciate administrative law principles may be found under the APA or under C.R.C.P. Rule 106(a)(4), which provides for judicial review of quasi-judicial decisions by other than state agencies.(fn9) The case law of Rule 106 and APA § 106 is often used interchangeably, but counsel should be aware that the APA is much more detailed and prescribes requirements on state agencies which may not exist when dealing with other than state agencies.(fn10)
A little-noticed 1977 amendment to the APA provided that an agency engaged in rulemaking may issue subpoenas, have depositions taken, fix the time for document filing and issue any appropriate order in the course of the rulemaking proceedings.(fn11) An accompanying amendment further provided that subpoenas were to be issued "without discrimination" between public and private entities and also set forth a procedure for agency recourse to the district court in order to obtain compliance with subpoenas for testimony or the production of books, records or other evidence.(fn12) Payment of witness fees, mileage and expert fees was also required, as in courts of record.(fn13) Thus, while not incorporating C.R.C.P. Rules 26 through 37 and 45(fn14) by reference, the legislature nevertheless sanctioned discovery and compulsion of witness testimony and documentary evidence in rulemaking proceedings.
This 1977 amendment to the rulemaking provisions apparently lay dormant until practitioners representing clients before the Water Quality Control Commission attempted in 1979 to obtain discovery of state employees who had gathered data and formulated certain proposed regulations affecting the use and treatment of water in the upper Colorado River Basin.(fn15) Having issued notices and subpoenas for deposition under their own signatures, these attorneys were informed by the Colorado Attorney General's Office of its view that a rulemaking body enjoyed sole discretion to determine when and if such discovery would be allowed. The depositions eventually proceeded under an agreement with the state, but the controversy raised concerns that an agency might arbitrarily or categorically refuse to allow discovery or compulsion of testimony or documentary evidence in a rulemaking proceeding.
Discovery and compulsory process for witness testimony and document production
are significant aids to the presentation of a fair and well-considered rulemaking proceeding, particularly from the standpoint of those who may be regulated by the agency or by persons interested in having the agency enforce its laws. This is true for the following reasons:
1)rulemaking may often involve complex social, economic, scientific and technical issues;(fn16)
2) rules are most often proposed by the same staff and agency which interprets and enforces the rules;(fn17)
3)the agency's interpretation, particularly contemporaneous construction regarding its rules and enabling Act, is entitled to deference;(fn18)
4)rules are entitled to presumptive validity and the burden is on the challenging party to establish invalidity beyond a reasonable doubt;(fn19)
5)judicial review is highly deferential to the agency;(fn20)
6)rulemaking involves the formulation of policy upon a hearing record which is not subject to evidentiary review to the extent of an adjudicatory record;(fn21)
7)it is presumed that those regulated are aware of the regulations which govern their actions;(fn22)
8)violation of rules may result in severe civil or criminal sanctions or both;(fn23)
9)rules can be extremely costly or prohibitive for the regulated sector to implement.(fn24)
The most important factor to consider in this regard is that rulemaking agencies in Colorado are normally composed of citizens who, depending on the circumstances, may need a great deal of education in the subject matter and the ramifications
of the proposal they are considering. Pre-hearing discovery can significantly narrow the need for oral testimony. The rulemaking agency can choose to accept depositions and other written material in lieu of oral presentations in order to shorten the proceedings.(fn25)
As in the court context, perceived issues and concerns about the proposed rule may disappear or be ameliorated as a result of discovery. Interested persons begin to see how best to prepare and make their presentation to the rulemaking agency. In sum, the rulemaking proceeding begins to assume known outlines before the hearing commences.
The subject of discovery, to a great extent, depends upon the content of the proposed rule and the criteria prescribed for consideration by the agency's enabling Act. However, other areas of inquiry for development of counsel's presentation are suggested by other recent changes to the APA and by court decisons.
For example, the legislature has directed state agencies to analyze the economic impact of agency action upon those regulated, the public and the state in relation to the benefits to be derived from the regulatory program.(fn26) The agency must incorporate by reference in the rules a "written, concise general statement of their basis and...
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