Appellate Advocacy in Administrative Law Cases
| Publication year | 1993 |
| Pages | 27 |
| Citation | Vol. 22 No. 1 Pg. 27 |
1993, January, Pg. 27. Appellate Advocacy in Administrative Law Cases
Seasoned administrative law practitioners, as well as those just entering the field, should be aware from the time a case enters the office that the battle may not be won, or even be winnable, at the administrative agency level. In CRS § 24-4-105, the Administrative Procedure Act ("APA") sets forth the procedures to be used in agency adjudicatory-type hearings, as authorized by the enabling statutes of specific agencies. After the hearing, a party dissatisfied with the result may seek judicial review pursuant to CRS § 24-4-106.(fn1) Because of the limits of agency jurisdiction, including the agency's inability to consider the constitutionality of the statutes under which it acts, the administrative law practitioner often must think about the appellate process and appellate advocacy at the time the case first arises.
Issues peculiar to appellate advocacy in administrative law cases were the subject of the program presented by the Colorado Bar Association ("CBA") Administrative Law Committee at the CBA's annual convention in September 1992. This article condenses the views expressed by the members of that panel.(fn2) It addresses general principles of administrative law and some practical considerations for the advocate representing a client in an administrative matter which has reached, or is likely to reach, the appellate level.
When a case first presents itself, there may be a constitutional issue involved, either as the sole issue or as one of many. It is well established that an administrative agency or an administrative law judge ("ALJ") acting on behalf of the agency cannot pass upon the constitutionality of a statute under which the agency acts.(fn3) Thus, the practitioner must determine whether to take the case directly to district court for a declaratory judgment action or whether it is first possible or necessary to present the issue to the agency.
Under current case law, constitutional issues-especially those involving contested issues of fact necessitating the presentation of evidence-should be raised in the district court. It is not necessary to exhaust the administrative process.(fn4) However, if the constitutional question involves no disputed issues of fact, it may be decided by the appellate court based on the record made in the administrative hearing.(fn5) This distinction may cause inconvenience and confusion when constitutional issues comprise only part of the matter(fn6) and does not appear necessary under the Colorado Supreme Court's decisions.(fn7)
The distinction perhaps follows from the fact that initial judicial review of the decisions of many agencies has been moved from district court to the Court of Appeals.(fn8) Whereas district courts are equipped to take evidence on issues not presented to the agency, the Court of Appeals confines its review to the record already established. Because the law in this area is somewhat unsettled (as shown by recent dissents), establishing the record on constitutional issues at the administrative level, if possible, is the safest route to avoid dismissal for failure to exhaust administrative remedies.
Exhaustion of administrative...
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