by Susan Herrick
University of Maryland School of Law
Twenty-five LLAM members gathered to hear Arnold Rochvarg, Professor of Law at University of Baltimore, address the topic “Getting More Admin Law Questions? Get Answers”, on Wednesday, November 9, at the U. of B. Student Center. Prof. Rochvarg is the author of the recently released Principles and Practice of Maryland Administrative Law and MICPEL’s Maryland Administrative Law, as well as many articles on the topic.
Previously a litigator with an administrative law practice in a large D.C. firm, Prof. Rochvarg began teaching administrative law in 1979. He posited that 98 percent of the material generally covered in law school administrative law courses at that time was federal – and that not much has changed since then. His interest in state administrative law dates back to at least 1990, when Maryland pioneered the concept of a centralized court with independent administrative law judges (ALJs) to conduct hearings for many state agencies, and established the Office of Administrative Hearings (OAH).
Prof. Rochvarg recalled the influence of Maryland’s first Chief ALJ, John W. Hardwicke Sr. As chair of an ABA Committee and executive director of the National Association of Administrative Law Judges, Chief Judge Hardwicke encouraged other states to adopt the Maryland model of a centralized ALJ court as opposed to use of agency-based ALJs, and about half the states eventually did so. It was also with Chief Judge Hardwicke’s encouragement, based on his belief that lawyers needed specialized training to effectively represent clients before OAH, that Prof. Rochvarg developed his course on Maryland Administrative Law at University of Baltimore – one of the first law school courses in the country to focus on state administrative law. After teaching the course for eight or nine years, Prof. Rochvarg decided to write his first book on Maryland administrative law, which was published in two editions by MICPEL. The adoption of new rules by OAH, effective in 2010, along with the demise of MICPEL, inspired Prof. Rochvarg to write the new and greatly expanded version of his book, which contains extensive information about practice and procedure before OAH.
Prof. Rochvarg stressed that Principles and Practice of Maryland Administrative Law contains not only analysis of the formal procedural and evidentiary rules but also the informal “folklore” of customary practice before OAH – for example, the fact that a request for postponement or stay because a party will be out of town requires a showing of proof such as travel tickets or receipts, and that a pending settlement is not considered good cause for a postponement. The book also addresses practice before state agencies which were permitted to opt out of adoption of the OAH system and retain agency-based hearings, including the Office of the Comptroller, the Maryland Workers’ Compensation Commission, and the Public Service Commission. Also provided is information about COMAR and how to research regulations, and about the Maryland Administrative Procedure Act (APA), including agency formal and informal rulemaking, contested cases, and the process of seeking judicial review of ALJ or agency decisions.
Prof. Rochvarg also posited that people – and by this he means attorneys and librarians in addition to self-represented litigants and even judges – often don’t recognize that the problem or issue they are dealing with involves a question of administrative law. He provided several fascinating illustrations – elaborated in detail in Principles and Practice of Maryland Administrative Law – of how administrative law questions are implicated in many and varied areas of legal practice including family law, employment law, and even criminal law. One example involved whether it violates the Double Jeopardy Clause’s prohibition against multiple punishments for the same offense for a driver to have his license suspended by an ALJ for driving while intoxicated and to subsequently be prosecuted in district court for that offense. (See Rochvarg at § 8.7.) The larger question here is the relationship between APA contested cases and issues of res judicata, collateral estoppel, and double jeopardy. In perhaps the ultimate example, he also described the infiltration of administrative law into the death penalty; currently executions have been suspended in Maryland solely due to administrative law issues. The Department of Corrections follows the protocol set forth in the Execution Operations Manual (EOM) to carry out lethal injections. The Court of Appeals halted executions in Maryland when it held, in Evans v. Maryland, 914 A.2d 25 (Md. 2006) that the EOM lethal injection protocol was invalid because it was not adopted according to the state APA rulemaking procedures for regulations. (See Rochvarg at §2.17) The broader question here is the issue of what constitutes a regulation and when an agency practice or activity can be challenged on APA rulemaking procedure grounds.
The presentation closed with a number of questions from the attendees, who clearly appreciated Prof. Rochvarg’s knowledgability of and enthusiasm for his topic. All who attended came away with a deeper understanding of the complexities of administrative law, and with the ability to better appreciate and address questions that come our way that may involve this area. Many thanks to Prof. Rochvarg for his energetic and informative presentation, and to Program Chair Mary Jo Lazun for arranging it.
Photos from the Program