Bill Text: NJ A4069 | 2010-2011 | Regular Session | Introduced
Bill Title: Requires administrative law judge to make final decision in certain contested cases.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-05-23 - Introduced, Referred to Assembly Judiciary Committee [A4069 Detail]
Download: New_Jersey-2010-A4069-Introduced.html
Sponsored by:
Assemblyman MICHAEL PATRICK CARROLL
District 25 (Morris)
SYNOPSIS
Requires administrative law judge to make final decision in certain contested cases.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the administrative adjudication of contested cases and amending P.L.1968, c.410 and P.L.1978, c.67.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1968, c.410 (C.52:14B-2) is amended to read as follows:
2. As used in this act:
(a) "State agency" or "agency" shall include each of the principal departments in the executive branch of the State Government, and all boards, divisions, commissions, agencies, departments, councils, authorities, offices or officers within any such departments now existing or hereafter established and authorized by statute to make, adopt or promulgate rules [or adjudicate contested cases] and, in the case of rate making agencies, adjudicate contested cases, except the office of the Governor.
(b) "Contested case" means a proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for [an agency] a hearing ,or in the case of a rate making agency, an agency hearing, but shall not include any proceeding in the Division of Taxation, Department of the Treasury, which is reviewable de novo by the Tax Court.
(c) "Administrative adjudication" or "adjudication" includes any and every final determination, decision or order made or rendered in any contested case.
(d) "The head of the agency" means and includes the individual or group of individuals constituting the highest authority within any agency [authorized or required by law to render an adjudication in a contested case] , and who, in the case of a rate making agency, is authorized or required by law to render an adjudication in a contested case.
(e) "Administrative
rule" or "rule," when not otherwise modified, means each agency
statement of general applicability and continuing effect that implements or
interprets law or policy, or describes the organization, procedure or practice
requirements of any agency. The term includes the amendment or repeal of any
rule, but does not include: (1) statements concerning the internal management
or discipline of any agency; (2) intraagency and
interagency statements; and (3) [agency] decisions and findings ,or in the case of a rate
making agency, agency decisions and findings, in contested cases.
(f) "License" includes the whole or part of any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law.
(g) "Secretary" means the Secretary of State.
(h) "Director" means the Director and Chief Administrative Law Judge of the Office of Administrative Law, unless otherwise indicated by context.
(i) "Rate making agency" means any agency in the executive branch of the State Government which has a statutory or administrative responsibility to fix just and reasonable rates.
(cf: P.L.1993, c.343, s.1)
2. Section 10 of P.L.1968, c.410 (C.52:14B-10) is amended to read as follows:
10. In contested cases:
(a) The parties shall not be bound by rules of evidence whether statutory, common law, or adopted formally by the Rules of Court. All relevant evidence is admissible, except as otherwise provided herein. The administrative law judge may in [his] the judge's discretion exclude any evidence if [he] the judge finds that its probative value is substantially outweighed by the risk that its admission will either (i) necessitate undue consumption of time or (ii) create substantial danger of undue prejudice or confusion. The administrative law judge shall give effect to the rules of privilege recognized by law. Any party in a contested case may present [his] the case or defense by oral and documentary evidence, submit rebuttal evidence and conduct such cross-examination as may be required, in the discretion of the administrative law judge, for a full and true disclosure of the facts.
(b) Notice may be taken of judicially noticeable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the specialized knowledge of the agency or administrative law judge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The experience, technical competence, and specialized knowledge of the agency or administrative law judge may be utilized in the evaluation of the evidence, provided this is disclosed of record.
(c) All hearings of a State agency required to be conducted as a contested case under this act or any other law shall be conducted by an administrative law judge assigned by the Director and Chief Administrative Law Judge of the Office of Administrative Law, except as provided by this amendatory and supplementary act. [A recommended] The administrative law judge shall issue a report and decision , or in the case of a rate making agency, a recommended report and decision, which contains [recommended] the findings of fact , or in the case of a rate making agency, the recommended findings of fact, and conclusions of law and which shall be based upon sufficient, competent, and credible evidence. The report and decision, or recommended report and decision, as the case may be, shall be filed, not later than 45 days after the hearing is concluded, with the agency [in such form that it may] .
(1) In the case of an agency other than a rate making agency, the report and decision shall be [adopted as] the final decision in the case [and] . It shall be delivered or mailed [,] to the parties of record with an indication of the date of receipt by the agency head [; and an opportunity shall be afforded each party of record to file exceptions, objections, and replies thereto, and to present argument to the head of the agency or a majority thereof, either orally or in writing, as the agency may direct]. The head of the agency [, upon a review of the record submitted by the administrative law judge,] shall adopt [, reject or modify the recommended] the administrative law judge's [report and] decision [no later than 45 days after receipt of such recommendations. In reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record. Unless the head of the agency modifies or rejects the report within such period, the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency. The recommended report and decision shall be a part of the record in the case].
(2) (i) In the case of a rate making agency, the administrative law judge's recommended report and decision shall be delivered or mailed to the parties of record with an indication of the date of receipt by the head of the agency. Each party of record shall have an opportunity to file exceptions, objections, and replies thereto, and to present such arguments to the head of the rate making agency, or a majority thereof if a group of individuals constitute the agency's highest authority, either orally or in writing, as the agency may direct.
(ii) In reviewing the recommended report and decision of an administrative law judge, and the exceptions, objections, and replies thereto from each party of record, the head of the rate making agency may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. The head of the rate making agency may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the head of the rate making agency shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.
(iii) The head of the rate making agency shall reject or modify the recommended report and decision no later than 45 days after receipt of such report and decision. Unless the head of the rate making agency modifies or rejects the report and decision within such period, the recommended decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency.
(iv) The recommended report and decision of the administrative law judge shall be a part of the record for the contested case involving the rate making agency.
For good cause shown, upon certification by the director [and the agency head] and, in the case of a rate making agency, the head of the agency, the time limits established herein may be subject to extension.
(d) A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated and shall be based only upon the evidence of record at the hearing, as such evidence may be established by rules of evidence and procedure promulgated by the director.
Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. [The] In the case of a rate making agency, the final decision may incorporate by reference any or all of the recommendations of the administrative law judge. Parties shall be notified either personally or by mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith by registered or certified mail to each party and to his attorney of record.
(e) Except where otherwise provided by law, the administrative adjudication of the [agency] administrative law judge or the rate making agency, as the case may be, shall be effective on the date of delivery or on the date of mailing [,] of the final decision to the parties of record, whichever shall occur first, or shall be effective on any date after the date of delivery or mailing [,] as the [agency] administrative law judge or the rate making agency, as the case may be, may provide by [general rule or by] order in the case or by general rule, as appropriate. The date of delivery or mailing shall be stamped on the face of the decision.
(cf: P.L.2001, c.5, s.4)
3. Section 9 of P.L.1978, c.67 (C.52:14F-7) is amended to read as follows:
9. a. Nothing in this amendatory and supplementary act shall be construed to deprive the head of any agency of the authority pursuant to section 10 of P.L.1968, c.410 (C.52:14B-10) to determine whether a case is contested [or to adopt, reject or modify the findings of fact and conclusions of law of any administrative law judge] or, in the case of a rate making agency, to adopt, reject or modify the findings of fact and conclusions of law of any administrative law judge consistent with the standards for the scope of review to be applied by the head of the agency as set forth in that section and applicable case law.
b. Nothing in this amendatory and supplementary act shall be construed to affect the conduct of any contested case initiated prior to the effective date of this act, or the making of any administrative adjudication in such contested case.
(cf: P.L.2001, c.5, s.5)
4. This act shall take effect immediately and shall apply to all contested cases initiated after the effective date.
STATEMENT
This bill amends various sections of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), and section 9 of P.L.1978, c.67 (C.52:14F-7) to establish that the final decisions in contested cases would be rendered by the administrative law judge hearing the case, not the head of the agency, except for contested cases involving rate making agencies. A rate making agency is defined in the bill as any agency in the executive branch which has a statutory or administrative responsibility to fix just and reasonable rates.
The amendatory language does not alter the existing rights of appeal; the final decisions by an administrative law judge, or in the case of a rate making agency, the agency head, would be subject to review by the Appellate Division of the Superior Court.
Currently, in contested cases an administrative law judge makes a recommended decision, and the agency head makes the final decision by either adopting, rejecting, or modifying the administrative law judge's decision. The sponsor maintains that this practice is wasteful and inefficient. The opinions of trained administrative law judges can be disregarded by politically-appointed department heads; and, moreover, the existing process allows for any agency against which a complaint is filed to make the final determination as to the validity of that complaint. This bill, according to the sponsor, would correct the situation so that the administrative law judge's decision, except in a contested case involving a rate making agency, would be final and only subject to review by the Appellate Division of the Superior Court.
