REFERENCE TITLE: administrative law judge decisions; review

State of Arizona House of Representatives Fifty-fourth Legislature Second Regular Session 2020

HB 2722

Introduced by Representative Lawrence

 

AN ACT

 

amending sections 12   910 and 41   1092.08, Arizona Revised Statutes; relating to administrative law judges decisions.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Be it enacted by the Legislature of the State of Arizona:

Section  1.    Section 12-910, Arizona Revised Statutes, is amended to read:

START_STATUTE12-910.    Scope of review

A.    An action to review a final administrative decision shall be heard and determined with convenient speed.    If requested by a party to an action within thirty days after filing a notice of appeal, the court shall hold an evidentiary hearing, including testimony and argument, to the extent necessary to make the determination required by subsection E of this section.    The court may hear testimony from witnesses who testified at the administrative hearing and witnesses who were not called to testify at the administrative hearing.

B.    Relevant and admissible exhibits and testimony that were not offered during the administrative hearing shall be admitted, and objections that a party failed to make to evidence offered at the administrative hearing shall be considered, unless either of the following is true:

1.    The exhibit, testimony or objection was withheld for purposes of delay, harassment or other improper purpose.

2.    Allowing admission of the exhibit or testimony or consideration of the objection would cause substantial prejudice to another party.

C.    For review of final administrative decisions of agencies that are exempt from sections 41   1092.03 through 41   1092.11, pursuant to section 41   1092.02, the trial shall be de novo if trial de novo is demanded in the notice of appeal or motion of an appellee other than the agency and if a hearing was not held by the agency or the proceedings before the agency were not stenographically reported or mechanically recorded so that a transcript might be made.    On demand of any party, if a trial de novo is available under this section, it may be with a jury, except that a trial of an administrative decision under section 25   522 shall be to the court.

D.    The record in the superior court shall consist of the record of the administrative proceeding, and the record of any evidentiary hearing, or the record of the trial de novo.

E.    After reviewing the administrative record and supplementing evidence presented at the evidentiary hearing, the court may affirm, reverse, modify or vacate and remand the agency action written decision of the administrative law judge.    The court shall affirm the agency action written decision of the administrative law judge unless the court concludes that the agency's action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion finds by clear and convincing evidence that the written decision is erroneous.    In a proceeding brought by or against the regulated party, the court shall decide all questions of law, including the interpretation of a constitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency.    Notwithstanding any other law, this subsection applies in any action for judicial review of any agency action that is authorized by law.

F.    Notwithstanding subsection E of this section, if the action arises out of title 20, chapter 15, article 2, the court shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.

G.    This section does not apply to any agency action by an agency that is created pursuant to article XV, Constitution of Arizona.   END_STATUTE

Sec.  2.    Section 41-1092.08, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1092.08.    Administrative law judge decisions; review; exception

A.    The administrative law judge of the office shall issue a written decision within twenty days after the hearing is concluded.    The written decision shall contain a concise explanation of the reasons supporting the decision, including the findings of fact and conclusions of law.    The administrative law judge shall serve a copy of the decision on the agency.   On request of the agency, the office shall also transmit to the agency the record of the hearing as described in section 12   904, except as provided in section 41   1092.01, subsection F.

B.    Within thirty days after the date the office sends a copy of the administrative law judge's decision to the head of the agency, executive director, board or commission, the head of the agency, executive director, board or commission may review the decision and accept, reject or modify it.    If the head of the agency, executive director, board or commission declines to review the administrative law judge's decision, the agency shall serve a copy of the decision on all parties.    If the head of the agency, executive director, board or commission rejects or modifies the decision, the agency head, executive director, board or commission must file with the office, except as provided in section 41   1092.01, subsection  F, and serve on all parties a copy of the administrative law judge's decision with the rejection or modification and a written justification setting forth the reasons for the rejection or modification of each finding of fact or conclusion of law.    If there is a rejection or modification of a conclusion of law, the written justification shall be sent to the president of the senate and the speaker of the house of representatives.

C.    A board or commission whose members are appointed by the governor may review the decision of the agency head, as provided by law, and make the final administrative decision.

D.    Except as otherwise provided in this subsection, if the head of the agency, the executive director or a board or commission does not accept, reject or modify the administrative law judge's decision within thirty days after the date the office sends a copy of the administrative law judge's decision to the head of the agency, executive director, board or commission, as evidenced by receipt of such action by the office by the thirtieth day, the office shall certify the administrative law judge's decision as the final administrative decision.    If the board or commission meets monthly or less frequently, if the office sends the administrative law judge's decision at least thirty days before the next meeting of the board or commission and if the board or commission does not accept, reject or modify the administrative law judge's decision at the next meeting of the board or commission, as evidenced by receipt of such action by the office within five days after the meeting, the office shall certify the administrative law judge's decision as the final administrative decision.

E.    For the purposes of subsections B and D of this section, a copy of the administrative law judge's decision is sent on personal delivery of the decision or five days after the decision is mailed to the head of the agency, executive director, board or commission.

F.    The decision of the agency head is the final administrative decision unless either:

1.    The agency head, executive director, board or commission does not review the administrative law judge's decision pursuant to subsection  B of this section or does not reject or modify the administrative law judge's decision as provided in subsection D of this section, in which case the administrative law judge's decision is the final administrative decision.

2.    The decision of the agency head is subject to review pursuant to subsection C of this section.

G.    If a board or commission whose members are appointed by the governor makes the final administrative decision as an administrative law judge or on review of the decision of the agency head, the decision is not subject to review by the head of the agency.

H.    B.    A party may appeal a final administrative the written decision of the administrative law judge pursuant to title 12, chapter 7, article 6, except as provided in section 41   1092.09, subsection B and except that if a party has not requested a hearing on receipt of a notice of appealable agency action pursuant to section 41   1092.03, the appealable agency action is not subject to judicial review.

I.    C.    This section does not apply to the Arizona peace officer standards and training board established by section 41   1821. END_STATUTE

Sec.  3.    Conforming legislation

The legislative council staff shall prepare proposed legislation conforming the Arizona Revised Statutes to the provisions of this act for consideration in the fifty   fifth legislature, first regular session.