1. The Evolution of Administrative and Regulatory Laws Institute of Regulatory Excellence January 7-9, 2008 Dusty Johnston William F. Knight

2. Administration/Regulation When & where did it start? When & where did it start? What exactly is it? What exactly is it? Why? Why?

3. Administration/Regulation Its what we do Its what we do Federal Federal State State County County Municipal Municipal Unincorporated Unincorporated Overlapping Overlapping

4. We regulate: Professions Professions People People Institutions Institutions Organizations Organizations Other Other

5. Regulation How do we do it? How do we do it? Enforcement of professional acts Enforcement of professional acts Nurses, Physicians, Pharmacists, Dentist, Lawyers, etc Nurses, Physicians, Pharmacists, Dentist, Lawyers, etc Administrative Procedures Act (APA) Administrative Procedures Act (APA) 50 different areas 50 different areas One Federal One Federal Equal Protection Equal Protection Due Process Due Process FOIA FOIA

6. Why Regulation? Protection Protection Consistency Consistency Continuity Continuity Standardization Standardization

7. U.S. Patriot Act Article in New York Times Article in New York Times Loss of individual freedom Loss of individual freedom Concerns? Concerns? What would the founders of the U.S. Constitution have thought? What would the founders of the U.S. Constitution have thought?

8. New York Times article concluded: The average American: The average American: didnt seem to care didnt seem to care didnt read it didnt read it didnt understand which freedoms were being restricted didnt understand which freedoms were being restricted had NEVER read the U.S. Constitution had NEVER read the U.S. Constitution didnt know the number of times the Constitution had been amended. didnt know the number of times the Constitution had been amended.

9. New York Times article concludes: (Cont.) The average American: The average American: didnt know the number of amendments repealed didnt know the number of amendments repealed didnt know the significance of the first 10 Amendments didnt know the significance of the first 10 Amendments The average lawyer never read it again in its entirety after passing the Bar. The average lawyer never read it again in its entirety after passing the Bar.

10. Reason given for not reading…. Too long Too long Too complicated Too complicated Didnt know where to find a copy Didnt know where to find a copy Not smart enough to understand Not smart enough to understand

11. My Response…. Its short Its short Easy to read Easy to read You will understand it You will understand it

12. Where are we today? 9/11 9/11 War War Afghanistan Afghanistan Iraq Iraq Bombings: Spain, Britain Bombings: Spain, Britain Other Middle Eastern issues Other Middle Eastern issues Korea – Nuclear Weapon Korea – Nuclear Weapon Terrorism world wide Terrorism world wide U.S. Patriot Act U.S. Patriot Act

13. My Response…. I thought it would be good to look at Regulatory or Administrative Law and see how we got here.

14. U.S. Constitution – early history Foundation of the Country Foundation of the Country Foundation of our system of justice Foundation of our system of justice Defines who we are as a country and people Defines who we are as a country and people All laws must pass Constitutional muster All laws must pass Constitutional muster

15. July 4, 1776 Declaration of Independence 13 colonies declare: 13 colonies declare: Independence Independence Themselves the United States of America Themselves the United States of America Two problems….. Two problems….. Lack of unity Lack of unity No US Constitution – yet!! No US Constitution – yet!!

16. January 1786 Colonies were Colonies were preparing for a constitutional convention preparing for a constitutional convention drafting the U.S. Constitution drafting the U.S. Constitution Once drafted: Once drafted: States had to ratify States had to ratify Delaware was first to ratify Delaware was first to ratify Rhode Island was 13 th Rhode Island was 13 th

17. May 25, 1787 Done deal! Done deal! We have a constitution We have a constitution We have the United States of America (13 colonies) We have the United States of America (13 colonies) George Washington was elected President George Washington was elected President

18. U.S. Constitution Three Branches of Government Three Branches of Government Legislative Branch – Congress Legislative Branch – Congress Executive Branch – President Executive Branch – President Judicial Branch – Supreme Court Judicial Branch – Supreme Court Separation of Powers Doctrine Separation of Powers Doctrine Legislative drafts laws Legislative drafts laws President signs laws President signs laws Court interpret laws Court interpret laws

19. Marbury vs. Madison (1803) Significant Significant Established the powers of U.S. Supreme Court Established the powers of U.S. Supreme Court final word on the U.S. Constitution final word on the U.S. Constitution not found in the Constitution not found in the Constitution Chief Justice (John Marshall) Chief Justice (John Marshall) 1 st Constitutional challenge 1 st Constitutional challenge Chief Justice vs. U.S. President Chief Justice vs. U.S. President

20. U.S. Constitution 7 Articles 7 Articles Article 5 - amending the constitution Article 5 - amending the constitution 26 Amendments 26 Amendments One Amendment repealed One Amendment repealed 21 st Amendment repealed the 18 th Amendment (Prohibition) 21 st Amendment repealed the 18 th Amendment (Prohibition)

21. Amendments to the Constitution 26 Amendments 26 Amendments Very difficult Very difficult Intended to be difficult (no accident) Intended to be difficult (no accident) Framers Feared – Knee Jerk reaction Framers Feared – Knee Jerk reaction See 18 th Amendment See 18 th Amendment Over 11,000 Attempts to Amend Over 11,000 Attempts to Amend Examples of failed attempts Examples of failed attempts ERA ERA Flag desecration Flag desecration Abortion Abortion English as National language English as National language Guns Guns Marriage (only between man & woman) Marriage (only between man & woman)

22. Amending the U.S. Constitution Fear of amending Fear of amending Fear of the unknown Fear of the unknown Dont know how the U.S. Supreme Court will interpret (both conservative and liberal) Dont know how the U.S. Supreme Court will interpret (both conservative and liberal) Examples: Examples: 2 nd Amendment 2 nd Amendment Guns Guns Do we have a constitutional right or not? Do we have a constitutional right or not?

23. 1 st Ten Amendments 1 st Amendment 1 st Amendment Religion Religion Political freedom (free exercise clause) Political freedom (free exercise clause) Speech Speech Press Press Right to peaceable assembly Right to peaceable assembly

24. 1 st Ten Amendments 2 nd Amendment – Right to Bear Arms 2 nd Amendment – Right to Bear Arms Supreme Court has only addressed it 7 times Supreme Court has only addressed it 7 times Supreme Court has NEVER said we have a right to bare arms as individuals Supreme Court has NEVER said we have a right to bare arms as individuals State Militias (National Guard) State Militias (National Guard) Why not more cases on 2 nd Amendment? FEAR! FEAR!

25. 1 st Ten Amendments 3 rd Amendment – Quartering of Soldiers 3 rd Amendment – Quartering of Soldiers Cant quarter soldiers in your home in times of peace Cant quarter soldiers in your home in times of peace Can quarter during war Can quarter during war 4 th Amendment – Search & Seizure 4 th Amendment – Search & Seizure 100s of cases 100s of cases

26. 1 st Ten Amendments 5 th Amendment – Criminal actions/ double jeopardy 5 th Amendment – Criminal actions/ double jeopardy Right not to testify Right not to testify Cannot be deprived of life, liberty or property without due process of the law Cannot be deprived of life, liberty or property without due process of the law Due process is not in the Declaration of Independence Due process is not in the Declaration of Independence Due process Due process Magna Carta – very limited Magna Carta – very limited George Mason drafted Virginia Constitution & added it to U.S. Constitution George Mason drafted Virginia Constitution & added it to U.S. Constitution

27. 1 st Ten Amendments 6 th Amendment – Rights of Accused to: 6 th Amendment – Rights of Accused to: Speedy trial Speedy trial Public trial Public trial Jury trial Jury trial Informed of charges against you Informed of charges against you Subpoena witnesses Subpoena witnesses Right to counsel Right to counsel Confront witnesses Confront witnesses

28. 1 st Ten Amendments 7 th Amendment – Jury trial in civil action 7 th Amendment – Jury trial in civil action 8 th Amendment – Punishment/Bail 8 th Amendment – Punishment/Bail No excessive bail or fines No excessive bail or fines No cruel & unusual punishment No cruel & unusual punishment Death penalty cases Death penalty cases 9 th Amendment – Rights retained by people 9 th Amendment – Rights retained by people Rarely used Rarely used

29. 1 st Ten Amendments 10 th Amendment – Rights reserved to the States 10 th Amendment – Rights reserved to the States Alcohol Alcohol Marriage Marriage

30. 1 st Ten Amendments 14 th Amendment 14 th Amendment Made 1 st ten amendments applicable to the States Made 1 st ten amendments applicable to the States Due process of Law Due process of Law Equal protection Equal protection Bill of Rights (first ten amendments) Bill of Rights (first ten amendments)

31. Administrative & Regulatory Law Federal Federal State State As regulators and citizens, we operate under both systems

32. Federal System U.S. Constitution U.S. Constitution Federal Criminal Laws Federal Criminal Laws Criminal Code Criminal Code Criminal Procedures Criminal Procedures Federal Rules of Evidence & Procedure Federal Rules of Evidence & Procedure Federal Civil Laws Federal Civil Laws Taxation Taxation Bankruptcy Bankruptcy Contracts Contracts Treaties Treaties

33. Federal System (cont.) Federal Regulatory & Administrative laws have: Federal Regulatory & Administrative laws have: Numerous Federal Commissions, Agencies and Boards with regulatory authority Numerous Federal Commissions, Agencies and Boards with regulatory authority Power to regulate Power to regulate Comes from Congress Comes from Congress Did/does Congress have authority to regulate? Did/does Congress have authority to regulate? Authority to delegate power to regulate to agency, etc Authority to delegate power to regulate to agency, etc

34. Federal System (cont.) Examples of Federal Regulatory Agencies Examples of Federal Regulatory Agencies FDA (Food & Drug Administration) FDA (Food & Drug Administration) OSHA (Occupational Safety & Health Admin) OSHA (Occupational Safety & Health Admin) SEC (Securities and Exchange Commission) SEC (Securities and Exchange Commission) FEC (Federal Election Commission) FEC (Federal Election Commission) EPA (Environmental Protection Agency) EPA (Environmental Protection Agency) FTC (Federal Trade Commission) FTC (Federal Trade Commission) Medicare Medicare Etc. Etc.

35. Federal System Treaties Treaties Limited to Federal government & foreign government Limited to Federal government & foreign government States States do not have right to enter into treaties with foreign governments do not have right to enter into treaties with foreign governments Contracts with other state – compact (requires legislation) Contracts with other state – compact (requires legislation) Examples: Examples: Nurse Licensure Compact Nurse Licensure Compact Drivers license Drivers license Child support Child support Pensions Pensions EPA – rivers EPA – rivers Nuclear Waste Nuclear Waste

36. State System Mirrors Federal system in structure Mirrors Federal system in structure Three systems of Government Three systems of Government Legislative, Administrative, Judicial Legislative, Administrative, Judicial Bound by Bound by U.S. & State Constitution U.S. & State Constitution U.S. & State Laws U.S. & State Laws U.S. & State Regulation U.S. & State Regulation State Rules & Regulation State Rules & Regulation

37. State System State Constitution State Constitution Often provides broader rights than Federal Constitution Often provides broader rights than Federal Constitution Often amended Often amended Contained in volumes rather than pages Contained in volumes rather than pages Verbose Verbose Knee-jerk reaction (multiple amendments) Knee-jerk reaction (multiple amendments)

38. State System State Constitution is modeled on: State Constitution is modeled on: Other State constitutions Other State constitutions U.S. Constitution U.S. Constitution Articles of Confederation Articles of Confederation British Common Law British Common Law Magna Carta Magna Carta

39. State System States regulate licensed professions through States regulate licensed professions through Professional Practice Act Professional Practice Act Administrative Procedures Act Administrative Procedures Act Freedom of Information Acts (FOIA) Freedom of Information Acts (FOIA) Rules and Regulations Rules and Regulations Other Other Consent Agreements Consent Agreements Agreed orders Agreed orders Etc. Etc.

40. State System Administrative Procedures Act (APA) Administrative Procedures Act (APA) Federal & State Federal & State Federal adopted in 1950s Federal adopted in 1950s States lead in the development & adoption of APAs States lead in the development & adoption of APAs APAs based on U.S. & State Supreme Court case law, 5 th & 14 th Amendment to U.S. Constitution APAs based on U.S. & State Supreme Court case law, 5 th & 14 th Amendment to U.S. Constitution

41. State System Administrative Procedures Act (cont) Administrative Procedures Act (cont) Each State has their own APA Each State has their own APA Similar but no two alike Similar but no two alike Can vary considerably Can vary considerably Model APA Model APA Some states have adopted some have not Some states have adopted some have not Arkansas – no Arkansas – no Texas - ??? Texas - ???

42. State System APA: Primary Purpose APA: Primary Purpose Provides minimum due process rights Provides minimum due process rights Procedural Procedural Substantive Substantive Due process is involved when: Due process is involved when: Someone is possibly going to be denied a right, opportunity or privilege to engage in a particular conduct or activity Someone is possibly going to be denied a right, opportunity or privilege to engage in a particular conduct or activity

43. State System Administrative Procedures Act Created To Administrative Procedures Act Created To Establish Rules and Standards for organizations Establish Rules and Standards for organizations Promote fairness and equal treatment Promote fairness and equal treatment To avoid arbitrary decisions by Board To avoid arbitrary decisions by Board Example: Example: licensure licensure exam exam license limited license limited discipline license discipline license Probation Probation Suspension Suspension Revoke Revoke

44. State Systems APA Guarantees: APA Guarantees: Right to counsel Right to counsel Right to public hearing Right to public hearing Right to notice (time, place, date, notice of charges, legal authority & jurisdiction) Right to notice (time, place, date, notice of charges, legal authority & jurisdiction) Right to confront witnesses Right to confront witnesses Right to statements to be used against you Right to statements to be used against you Statement of experts Statement of experts

45. State System APA Guarantees (cont.) APA Guarantees (cont.) Evidence against you (books, papers, documents, photos, recordings, etc.) Evidence against you (books, papers, documents, photos, recordings, etc.) Right to respond Right to respond Present evidence Present evidence Present argument Present argument Right to final written decision (Findings of Fact and Conclusions of Law) Right to final written decision (Findings of Fact and Conclusions of Law) Right to appeal Right to appeal Right to interpreter Right to interpreter

46. State System Standard of Proof Standard of Proof Beyond a reasonable doubt Beyond a reasonable doubt Preponderance of evidence Preponderance of evidence Something less that the above Something less that the above Arkansas – substantial Arkansas – substantial Texas - ??? Texas - ???

47. State System Freedom of Information Act (FOIA) Freedom of Information Act (FOIA) Statutory Statutory Generally contained within APA Generally contained within APA Both Federal & State FOIA Both Federal & State FOIA Tremendous variation Tremendous variation Arkansas is broad and sweeping – most everything Arkansas is broad and sweeping – most everything Texas Board - ??? Texas Board - ???

48. State System Freedom of Information Act (FOIA) Freedom of Information Act (FOIA) Can request FOIA information Can request FOIA information In person In person By phone By phone Written Written Fax Fax Etc Etc Executive Session Executive Session Contained within most FOIA Contained within most FOIA 50 states – 50 different executive sessions 50 states – 50 different executive sessions Arkansas is very limited Arkansas is very limited Texas ?? Texas ??

49. State System Licensing Boards - Nursing Licensing Boards - Nursing Statutory authority Statutory authority Governed by State laws Governed by State laws Practice Act Practice Act Authority expressly granted Authority expressly granted Regulate & police the profession Regulate & police the profession

50. State System Licensing Boards - Nursing Licensing Boards - Nursing Responsibility Responsibility Protect the public Protect the public Uniformity of practice Uniformity of practice Uniformity of educational standards Uniformity of educational standards Initial and continuing professional standards Initial and continuing professional standards Enforcement of standards Enforcement of standards Assist practitioners Assist practitioners Professionally Professionally Education Education Peer Assistance Peer Assistance

51. State System Licensing Boards - Nursing Licensing Boards - Nursing Members Members Appointed by governor Appointed by governor Elected Elected

52. QUESTIONS