- Report Published -
|Administrative Process Act|
|Virginia Code Commission|
|Chapter 703 (Regular Session, 1952)|
|The Commission, charged with examining the General Administrative Agencies Act, submits the following report respecting the administrative process in the State:|
In 1944 the General Assembly adopted the first statutes designed to regulate administrative processes (Chapter 160 of the 1944 Acts of Assembly). It was soon followed by the substitution of a more comprehensive law in 1952 (Chapter 703 of the 1952 Acts of Assembly) which, with slight amendments, is the present General Administrative Agencies Act. Reference to the annotated Code of Virginia shows that, in the 20 years which have followed, there has been but one reported decision referring to it--but only in passing as the issues in that case were in no way dependent upon the act. It is also an open secret that the act in its present form is largely unused and unusable. If that were the only matter for consideration, the Code could be cleared by a simple repeal of the act. But that is not all that is involved because, among other things, subsequent laws relating to administrative powers often refer to and thereby assume to adopt it by reference; and hence something more is needed than its repeal. There are, of course, also many other reasons why there should be a general administrative process act to do generally that which the General Assembly cannot be expected to do specially each time it confers administrative powers, to guide agencies, to inform the public, and to lessen the chances for miscarriage of administrative justice by agencies in the first instance or by courts when they review administrative action.
For such purposes there are several reasons why the present General Administrative Agencies Act is inoperable, if not indeed substantially meaningless. In the first place, even assuming that it could be workable, it is so riddled with general exceptions of agencies and subjects that there is very little left for it to relate to. In view of the serious imperfections in the "model" from which the act was derived, mentioned below, it is not surprising that the lawmakers in 1952 could not risk applying it to important fields of administrative law in Virginia.
Secondly, the act is technically defective in a basic way because of its failure to distinguish the processes to be used in making regulations as contrasted with those necessary in deciding cases. It may be that this defect was one of the considerations which led to the wholesale exemptions mentioned above. In any event, it was fashionable in the late 1940' s and early 1950' s for states to adopt such acts, mainly because of the coming of the federal act in 1946 and the promulgation of the very different so-called Model Act suggested by the Commissioners on Uniform State Laws in the same year. Virginia followed the so-called Model State Act in this respect as did a total of about ten states in one degree or another. The acts thus adapted and adopted by other states have fared no better than the Virginia version, there being but three case citations thereto mentioned in the annotations collected in Uniform State Laws--and those are trifling references from the supreme court of only one state. The Model Act has since been somewhat revised by the Commissioners, but without correcting the basic difficulty.
Thirdly, and perhaps more immediately important, the Model Act and the derivative Virginia act are overly simplistic in conception. They are gravely deficient in the failure to make essential distinctions, and provide separate procedures, not only for making regulations or deciding cases but also for either of those operations (a) with formal trial-type procedure in some cases and (b) without it in others. The basic laws of Virginia, which govern notwithstanding the General Administrative Agencies Act, sometimes provide for one type of procedure, sometimes the other, in making regulations or deciding cases. But the General Administrative Agencies Act assumes that all administrative powers are the same in kind and method-which means that it fits some agency operations and ignores others where it does not hinder them. Thus, for example, it speaks mainly to the administrative process for the making of regulations and all but ignores that process for the administrative fact finding and decision of cases. Save for rate making, where constitutional requirements are already extensive, the making of administrative regulations in Virginia is a minor part of the total operation of the agencies. Administrative adjudication, on the other hand, may and does proceed without the making of regulations and is thus virtually unaided and unguided by the General Administrative Agencies Act. The present act also assumes in the main that all procedures in either case are of the formal trial-of-fact variety whereas most of them are not. A cure for these critical deficiencies would require a rewriting of the present act from end to end, that is, from its definitions to its conclusory provisions respecting court controls. To remedy the situation in the form of amendments would result in a bill in which it would be difficult to find traces of the language of the present act save for some phrases or details such as those relating to subpoenas or depositions. It has seemed to the Commission, therefore, that the clearer course of procedure would be to draft a completely new act at least as an illustration of what needs doing and of language suitable therefor. In doing so the Commission has also been impressed with the need for clarity, for recognizing the needs of the administrative process, and for an act which can aid and expedite administration and inform the public as to its nature as well as supply rudimentary protections to those individuals and organizations who are subject to control by it.
Accordingly, the attached bill contains much that is ignored by the present act, and some things which are left unsaid in any similar acts in other jurisdictions, but very little that is at all novel in practice anywhere. Mainly it distinguishes between agency processes for making regulations and those for making case-fact decisions. In the making of regulations, it further distinguishes between (a) informational proceedings, which may be of several types, and (b) evidential proceedings which are rarely called for and have some similarity to trials of fact. The same is done for case decision procedures which primarily involve fact finding and again are separately stated for the nonhearing and trial-of-fact types of administrative adjudication process. These distinctions, moreover, are already made in existing Virginia statutes conferring administrative powers; and thus the suggested provisions match and supplement the related statutes in the Code of Virginia rather than repeal or radically modify them.
A final word may be helpful to explain the length of the attached bill. Since the subject is the whole of the administrative process, it is necessary to state all the salient points of and differentials in that process lest it be thought that some part of it is being changed or ignored.