As the chair of the Administrative Law Section of the Tennessee Bar Association, I want to take this opportunity to share some of the improvements our Section has already made as well some of the goals Vice-Chair Christy Allen and I have for the year. For those of you who don't know us, I am the Director and Chief Administrative Judge of the Administrative Procedures Division of the Office of the Secretary of State. Christy is the Assistant Commissioner, Bureau of Health Licensure and Regulation, for the Tennessee Department of Health.

We held the first Administrative Law Section lunch meeting in October at the Tennessee Bar Center. It was well attended and a good discussion was had about what the members would like to see the Section accomplish this year.

I am very excited about the CLE program the Section held in December. I am sure you received information about it. We had over 60 people in attendance, which I believe is the record for an Administrative Law Section CLE program. The responses we received from the attendees were very positive.

Another Section lunch is being planned to discuss future CLE programs and other Section activities. Section members will be notified when a date is selected.

Christy and I have other initiatives we would like to pursue. One is to add more content to the Section website. Additional material has already been added to the website and I encourage you to take a look at the site at - http://www.tba.org/sections/AdministrativeLaw/index.html- if you haven't recently done so. More content will be added in the future and we certainly encourage anyone who may have ideas for additions or modification to the site to please let us know. We would also like to have more cooperation with other Sections with interests that overlap with ours, such as the Environmental Law and Health Care Law Sections. I spoke to the chairs of those two sections at a recent TBA event and they were very receptive. Any ideas you may have as to how we might coordinate efforts with other sections would be appreciated.

My overall goal for the year is to improve the Administrative Law Section and to make it a more useful resource for the membership. I have already been impressed with the positive feedback I have received from the members and offers to help. Christy and I cannot do this by ourselves and we look forward to working with all of you in the coming year.

Thomas Stovall, Chair

Tennessee Department of State Administrative Procedures Division

312 Rosa L. Parks Ave.

Nashville, TN 37243

Phone: (615) 741-0518

Fax: (615) 741-4472

Email: tom.stovall@tn.gov

Administrative Law Section Chair Tom Stovall seeks volunteers to serve on the Section's Executive Council.  The Executive Council meets quarterly and otherwise at the call of the Chair to plan the activities of the Section, which include producing the annual CLE program.  If you are interested in serving on the Executive Council, please do not hesitate to email Tom Stovall at: Tom.Stovall@tn.gov or the Section Vice-Chair, Christy Allen at: Christy.Allen@tn.gov.  We look forward to hearing from you!

By Wyla M. Posey

Judicial Clerk and Special Master for

Part I, Davidson County Chancery Court

It has been three years since I joined Part I of Davidson County Chancery Court as a judicial clerk.  Having litigated numerous cases in Chancery during my seven years at the Attorney General's Office, including several under the Administrative Procedures Act (APA), I still marvel at the differences between what I thought happened behind the scenes at the Court and what actually occurs.  Thus, I thought it might be worthwhile to share a few of the practical problems that I often encounter in APA's at the chancery level.[i]  With that purpose in mind, the following is not intended to be a scholarly discussion of the legal in's and outs of the APA, but rather a list of practical, more logistical, suggestions that litigators may find helpful.

Practical Suggestion #1 - Inquire Whether You Should Bring a Court Reporter to the Merits Hearing

Under Tenn. Code Ann. § 4-5-322(j), the reviewing Court must issue written findings of fact and conclusions of law.  Depending on the case, some Chancellors (but not all) may make a detailed bench ruling if a court reporter is present.  The Chancellor will then request that the prevailing party attach a transcript of the bench ruling to the proposed order.  This transcript then serves as the Court's written decision. 

Practical Suggestion #2 - Be Careful Not to Combine an Original Action with an Administrative Appeal

Before you file your complaint/petition, take a moment and determine whether you have an original action or an administrative appeal.  This is often easier said than done.  Whether there was, or should have been, a contested case hearing below can be an issue for debate.  Yet, regardless of how that issue is ultimately resolved, be ready for the practical issues that will arise if you attempt to maintain a declaratory judgment action, or other original action, in the same lawsuit as an action for judicial review under Tenn. Code Ann. § 4-5-322.  While the law surrounding declaratory judgments is an active and debatable area, one cannot typically join an original action with an administrative appeal under § 4-5-322.  See Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383 (Tenn. Ct. App. 1983).

Original actions and appeals are incompatible on a practical basis.  An original action, such as a declaratory judgment, is creating its own trial record at the chancery level.  As an original action, it cries out for the normal civil procedure process of a complaint, an answer, and perhaps a motion for summary judgment.  Judicial review under § 4-5-322 is an appeal from a final administrative decision, relying on a factual record created below, which should follow the merits briefing procedure set out in Davidson County Local Rule 25. 

While I have seen attorneys file one complaint/petition stating both actions, and then dismiss one action later, be aware that such a course invites a host of possible problems.  The opposing side has no way to know how to respond to the complaint/petition.  Do they file an answer or file the record?  If the opposing side proceeds without filing a motion to dismiss to clarify the issue, the factual record may become a complete mess, especially if a dispositive motion is filed.  Filing both actions and leaving the choice up to the Court in an anticipated motion to dismiss does not always work out well either.  The Court may be reluctant to choose which action should survive and dismiss both actions.  

Practical Suggestion #3 - Take the Initiative in Setting Your APA for its Merits Hearing

Davidson County Local Rule 25 controls when parties will file their merits briefs for cases seeking judicial review under Tenn. Code Ann. § 4-5-322.  (Petitioner - 30 days after the record is filed.  Respondent - 30 days after service of the petitioner's brief.)  The local rule works in conjunction with Tenn. Code Ann. § 4-5-322(d), which requires the state agency, normally through the Attorney General's Office, to file the record 45 days after the petition is served.  

What attorneys often overlook is how to set their merits hearing.  Parties sometimes diligently file the record and their merits briefs and then wait for the Court to set the case for hearing.  (This is especially true when the Petitioner is pro se, but it happens to represented clients as well.)  This problem flows from the misperception (which I used to have) that the Court sees all documents filed in the Clerk and Master's Office.  There must be some trigger to bring a case file up to chambers, such as an upcoming motion date, hearing date, or a proposed order.  Unlike motions that have a notice of hearing at the end of the document and that flow through the motions clerk for docket scheduling purposes, there is no such procedural trigger to set an APA merits hearing or to otherwise alert the Court that the case is ready for review.  Placing a notice of hearing at the end of a petition for judicial review will not suffice because that practice conflicts with the local rule and because a petition, unlike a motion or separate notice of hearing, will not flow through the motions clerk for scheduling on the Court's docket.  

  Simply put, attorneys should take the initiative to set an APA on the Court's docket.  Local Rule 25.03 provides that "oral argument shall be scheduled as provided in Local Rule 27 after the record has been filed."  Local Rule 27.02 provides that cases will be set in one of four ways:  (1) by agreement of counsel after consultation with the Chancellor's calendar clerk; (2) at a scheduling conference; (3) by motion; or (4) at the discretion of the Chancellor with notice to counsel. 

Practical Suggestion #4 - If You Have a Procedural Argument that Requires Proof Outside the Record, Do Not Hold It until the Merits Hearing

Tenn. Code Ann. § 4-5-322(g) provides that "[i]n cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court."  This differs from the application process to present additional, substantive evidence under Tenn. Code Ann. § 4-5-322(e).  Thus, while you might be allowed to present additional proof at the chancery level for your procedural irregularities argument, this is a rare event and the Court is likely not anticipating hearing proof when it schedules an APA merits hearing.  Showing up to the merits hearing with a witness or with a document that you seek to add to the record is a risky proposition. 

If you have a true procedural argument that requires proof outside the record, alert the Court to this proof well in advance of the hearing.  Depending on the Chancellor, you may need to file a motion.   The Court will expect you to put it, and your opposing counsel, on notice of your additional proof in time to review and address it properly.  If your proof is in document form, you must find a way to present that document as admissible evidence - simply attaching it to a merits brief is not sufficient.  Also, be prepared to explain why the issue you are raising is truly an "irregularity in procedure" and not a substantive argument which must be addressed under Tenn. Code Ann. § 4-5-322(e).

Practical Suggestion #5 - Find a Way to Distinguish Different Types of Exhibits in the Administrative Record

Different types of exhibits can become a confusing mess when bound together in an administrative record.  There are often exhibits to the briefs filed below, exhibits to depositions, and exhibits entered at the contested case hearing.  Deposition and hearing exhibits are often separated from their respective transcripts and filed at different places in the administrative record.  To complicate matters further, the entire agency file is often included and may contain duplicate copies of several documents already in the record.  Trying to determine which exhibits are which is often quite a challenge.  It is critical for the Court to understand which exhibits were admitted as evidence at the contested case hearing.  Thus, try to identify which exhibits go with what document or event, e.g. brief, deposition, hearing, etc.  If an entire deposition was admitted as an exhibit at the contested case hearing, please note that fact as well. 

Practical Suggestion #6 - State Attorneys - If at All Possible, File a Record That Complies With the Rules of the Court of Appeals

Rule 3 of the Rules of the Court of Appeals states that the record on appeal "shall be composed of volumes of not more than 150 pages each."   If the State does not file the administrative record in this manner with Chancery Court, the clerk's office has to pull apart the record and reassemble it in a manner that complies with this rule.  As you can imagine, this takes a great deal of time and effort.  Taking the time to file the record in 150-page volumes will not only endear you to the clerk's office, but it will also save you (and your opposing counsel) the agony of changing all of your record volume cites on appeal.[ii]

Practical Suggestion #7 - Certify and File the Rules and Regulations for the Applicable Time Period

Often the applicable rules and regulations are discussed in the briefs, cited in the notice of charges, or mentioned elsewhere, but the full text of the rules are not included in the record.  Even more often, if the rules are in the record, there is no indication regarding whether the rules provided were in effect at the time applicable to the case.  For example, if a contested violation took place in the year 2000 and either side is relying on a rule, the rule that was in effect for the year 2000 should be certified and filed - preferably at the administrative level, but also later in Chancery if necessary.  If the violation spanned numerous years, then the Court needs to know whether the rule changed during that time.  This applicable time period advice applies to statutes as well, but is more critical for rules for several reasons, including the fact that historical rules, unlike historical statutes from 1988 forward, are not available to the Court on Westlaw.  The Tennessee State Library and Archives (615-741-2764) has historical state rules and regulations and can certify copies.

Practical Suggestion #8  -  Consider Providing a Timeline and Cast of Characters

Parties to an administrative proceeding have usually lived their case for a significant amount of time before it reaches Chancery Court.  It can take a while for the Court to get up to speed on even a short record when there are many witnesses or other players involved.  A timeline of important substantive and procedural events and a list of major players can serve as preparation tools and later refresher references for the Court.  The table of contents to the record will often provide a sufficient procedural timeline, but it is helpful to highlight when the administrative order became final so the Court can assess whether the petition is timely. 

Practical Suggestion #9  - Provide the Essential Documents Separately if Practical

Oddly enough, this can be a very controversial topic.  Personal preferences vary wildly on the issue of attaching material documents or cases to briefs, or on providing these items in a separate appendix.  While I would not recommend it for the Court of Appeals, for a case with a small record, or for a case with numerous or lengthy material documents, I personally appreciate it when attorneys pull the few, relevant documents from a large record and either attach them to their brief or file them separately.  For example, if your case involves an applicant who allegedly did not disclose a prior conviction, a good appendix for the State would have everything that the State might want referenced in the Court's opinion, including the application, the conviction, the rule or statute prohibiting the omission, and the rule or statute providing the applicable penalty.  I am also a fan of providing copies of the most critical cases and bracketing the sections cited on the case itself - as long as copies are provided to the opposing side with the same markings.   

Practical Suggestion #10  - Educate, As Well As Persuade

Many government attorneys, and sometimes their private counterparts, work primarily with one or two government agencies or boards.  These entities have their own contested case procedures which the attorneys utilize everyday, but that the Court encounters only occasionally.  Before convincing the Court that you are right on the merits, educate the Court about how and why you are there.  What areas does the agency or board regulate?  Where does the agency or board fit in the government structure?  How and why were the proceedings initiated below?  Does the agency or board follow its own contested case procedures or those of the Secretary of State?  Last, but not least, why does the Court now have jurisdiction?  With this foundation, it is easier for the Court to focus on your merits argument.

I hope these suggestions are helpful.  Feel free to email me at wyla.posey@nashville.gov with any comments. 

Mark your calendars for December 7, 2010, for the annual Administrative Law Section CLE program.  This year's program will offer 3 credit hours; program topics are being finalized.  Watch your email and the Tennessee Bar Journal for updates.

Is there a topic in Administrative Law you'd like to learn more about?  The Executive Council is soliciting your ideas for future CLE programs and Section newsletter articles.  The Section would not be a success without your input, so feel free to email topics or articles to Christy Allen at Christy.Allen@tn.gov.  If you have a request for this year's CLE program, it's not too late to propose a topic; just be sure to submit your topic proposals by July 1, 2010.

© 2010 Tennessee Bar Association