ADMINISTRATIVE PROCEDURE FOR THE
TWENTY-FIRST CENTURY: AN
INTRODUCTION TO THE 2010 MODEL
STATE ADMINISTRATIVE PROCEDURE ACT
II. Backstory: The IViid-Twendedi Century Origin of APAs
A. State Administradve Procedure Act Developments
B. The Significance of Drafdng a Model Act
III. Fundamental Principles of die 1946 IVISAPA
A. General Features of the 1946 iVTSAPA
IV. General Features of the 1961 IVISAPA
B. 1961 MSAPA Rulemaking Provisions
C. 1961 MSAPA Contested Case (Adjudicadon) Provisions . . . 256
V. General Features of the 1981 MSAPA
VI. Model State Administradve Procedure Act of 2010
A. Drafters' Approach to the 2010 MSAPA
B. General Features of the 2010 MSAPA
Professor of Law, Widener Utiiversity School of Law; Director, Widener Law & Government
Institute; ULÇ Comtnissioner Member 2010 Revised Model State Administrative Procedure Act
Drafting Committee, 2004-2010.
ST. MARY'S LAW JOURNAL
E. Central Panel Article
F. Judicial Review
H. Legislative Rules Review
I. Electrorüc Procedure
The National Conference of Commissioners on Uniform State Laws
(ULC) approved the Revised Model State Administrative Procedure Act
(2010 MSAPA) in 2010. The model state administrative procedure acts
have been one of the most successful endeavors of the ULC.^ They have
played a major role in encouraging states to incorporate concepts of
fairness into state agency procedure statutes and to make express
provisions for judicial review of administrative action.^ Those states that
adopted the model acts accompUshed these fairness goals .whue bringing
efficiency and accuracy into the state administrative process.-^
This Article describes the evolution of earUer state administrative
procedure acts (APAs) into the 2010 MSAPA. By providing an overview
of the Act's new features, this Article wiü offer guidance that is useful for
analysts and legislators seeking to implement sinular models designed to
improve state APAs. This overview examines how the development of
1. See Walter Gellhorn, The Administrative Procedure Aa: The Beginnings, 72 VA. L. REV. 219, 2 3 1 32 (1986) (noting the unprecedented unanimous support for the Act when presented to the Senate in
March of 1946).
2. See Arthur Earl Bonfield, The Federal APA and State Administrative Law, 72 VA. L. REV. 297,
307 (1986) (quoting the 1961 MSAPA Prefatory' Note and concurring that '"there are certain basic
principles of common sense, justice, and fairness that can and should prevail universally' in the
administrative process"); Reuel E. Schiüer, The Era of Deference: Couris Expertise, and the Emergence of
New Deal Administrative Law, 106 MICH. L. REV. 399, 430-39 (2007) (analyzing the impact of the
Roosevelt administration and the makeup of the courts during the 1930s and 1940s on doctrines
governing judicial review).
3. The exact number of states that have adopted the model acts is difficult to specify because
the Act is designed to be maüeable enough to aüow states to adopt it in full, or use the Act as a
resource for drafting state-made administrative law provisions. See MODEL ST. ADMIN. PROC. ACT,
Prefatory Note (2010), 15 U.L.A. 2 (West Supp. 2012) (indicating tiie states Arizona, New Hampshire,
and Washington have adopted many of the 1981 Act's provisions whue other states have drawn from
the Act in drafting their own administrative procedure provisions).
2010 MODEL STATE ADMINISTRATIVE PROCEDURE ACT
the administradve procedure acts as model acts^ made the ultimate goal of
fairness achievable, as evidenced in the various revisions of the MSAPA.
It includes a descripdon of the progression of poUdcal.and other restraints
on agencies, and the evoludonary reladonship between the 1961 MSAPA
and the 2010 MSAPA. AddidonaUy, this Árdele discusses the drafters'
attempt to adopt administrative procedures to take advantage of
developments in the digital realm.
BACKSTORY: T H E MID-TWENTIETH CENTURY ORIGIN OF A P A S
Administradve law is new and administradve procedure did not emerge
as a disdnct category of law untü the mid-twentieth century.^ After a long
process of development at the federal and state levels, the ULC adopted
the first MSAPA in 1946, the same year that the United States Congress
adopted the Federal Administradve Procedure Act (FAPA). The first step
in the process took place in 1933 when the American Bar Associadon
(ABA) estabUshed a Special Committee on Administrative Law.*^ The
Special Committee concluded that the then-current exercise of judicial
powers was creadng serious fairness problems.^ In a 1938 ABA report.
Harvard Law School Dean, Roscoe Pound, attacked agency adjucUcadon
procedure, arguing that:
Since an administradve agency acted as rule rhaker, prosecutor, judge, and
iury, proceedings before the agency were nothing more than a meaningless
formality whose purpose "from end to end is ... to give effect to a
complaint." Often agencies skipped the hearing process altogether or made
decisions based on evidence that was not on the record. Even when they
made decisions on the record, [they were] füled -with opinions, hearsay, and
4. Note the significance of the drafters' choice to create a model act as opposed to a uniform
act. Because the drafters sought a flexible solution that could apply despite the irreconcilable
differences in state administrations, the Act was drafted as a model act, creating a solution superior to
the rigid application inherent in uniform acts. See WALTER P. ARMSTRONG JR., A CENTURY OF
SER-WCE: A CENTENNIAL HISTORY OF T H E NATIONAL CONFERENCE O F COMMSSIONERS ON
UNIFORM STATE LAWS 57-68 (1991) (designating the characteristics of a model act).
5. i"ie Jerr)' L. Mashaw, Federal Administration and Administrative Law in the Gilded Age, 119 YALE
L.J. 1362,1362 (2010) (descdbing the early days of the American Industrial Age).
6. Walter Gellhorn, The Administrative Procedure Act: The Be^nnings, 11 VA. L. REV. 219, 219
7. See id. (noting the first formal report and proposed legislation was "aimed at coping with 'the
evils notoriously prevalent' among administrative tribunals").
8. Reuel E. Schiller, The Era of Deference: Gourts, Expertise, and the Emergence of New Deal
Administrative Law, 106 MICH. L. REV. 399, 423 (2007) (internal citations omitted) (quoting SPECIAL
COMMITTEE ON ADMINISTRATIVE LAW, 1938 ANNUAL REPORT OF T H E SPECLAL COMMITTEE ON
ADMINISTRATIVE LAW, at 347).
ST. MARY'S LAWJOURNAL
Foüowing suit, many state bar associadons also formaüy adopted
posidons attacking administradve adjudicadon procedure.^
Commentators, as weü as state and federal bar officials, also attacked
administradve rulemaking procedure. These opponents argued that
agency acdons were fundamentaüy unfair because agencies did not
pubHsh, give nodce of, or make avaüable, the rules adopted by the
agencies.^^ Specificaüy, the attacks included a separadon-of-powers
element; commentators argued that the agencies issued numerous
reguladons that had the force of law, some with criminal penaldes, without
pubHc nodce or pubHc access to the reguladons either before or after
passage.^ ^ Commentators argued this lack of rulemaking procedure
consdtuted a serious incursion against the execudve and legisladve
The arguments both pro and con were harsh and contendous. Some
commentators argued that the strong disagreements between proponents
and opponents of administradve reforrh were merely "a search for
administradve truth and efficiency."^-^ Others argued "the fight over the
APA was a pitched poHdcal batde for the Hfe of the New Deal" and that
the "central purpose of the proponents of administradve reform was to
constrain Hberal New Deal agencies."^'*
The debate was intense because it was not merely about administradve
procedure, but rather involved impassioned disagreement regarding
substandve law and widely divergent.poHdcal posidons.^^ The attempt to
9. See Walter Geühorn, The Administi-ative Procedure Act: The Beginnings, 72 VA. L. REV. 219, 222
(1986) (describing the ABA president-elect's attacks on the procedure as "Hberals" seeking
10. See Erwin N.-Griswold, Government in Ignorance of the Law—A Plea for Better Publication of
Executive Legislation, 48 HARV. L. REV. 198, 204-08 (1934) (ülustrating the potential negative effects
that the administrative procedures would have due to the lack of notice and avaüabiüty of the rules).
11. See id. at 202—03 (giving examples of past regulations that have imposed criminal sanctions
for violations, such as the National Industrial Recovety Act of 1933 and the Securities Exchange Act
12. See id. at 202-04 (denouncing administrative procedure practices as chaotic and comparing
practices of the legislature and judiciaty with those of administrative procedure existing at the time).
13. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New
DealPolitics, 90 NW. U. L. REV. 1557,1560 (1996).
14. Id. Much of the material on the battle over administrative procedure is based upon
Professor Shepherd's comprehensive article, which focused on the poHtical batties concerning the
interrelatedness of New Deal poHtics and administrative procedure reform. See generally id. (providing
a detaüed analysis of the developmental histOty of MSAPAs).
15. JVe James M. Landis, CrudalIssues in Administrative Law—The Walter-Logan Bill, 53 HARV. L.
REV. 1077, 1078 (1940) (describing how the confHct over administrative procedure played out in the
ABA's opposition to the National Lawyers Guüd).
2010 MODEL STATE ADMINISTRATIVE PROCEDURE ACT
create and control administrative procedure was an attempt to control the
New Deal.^*^ The attacks on administrative procedure were in fact efforts
that sought "radicaUy to alter substance."^''
The New Deal indirectiy sparked the creation and rapid growth of
administrative procedure because of perceived abuses by newly created
agencies.^ ^ In an attempt to remedy quickly the economic problems of
the Great Depression, federal and state legislatures delegated extensive
discretion to agencies, empowering them with immense rule-making
powers and adjudicatory authority without provisions for standards or
pubUshed procedures.^^ Critics asserted that this unchecked discretion did
"violence to society's concept of justice."^° Despite the recognized
importance of administrative law, it remained unsettied. As late as 1963,
one observer noted that:
[r|t is self-evident that knowledge concerning [administrative law] is
indispensable to the maintenance of the rule of law. In view of the
tremendous significance of administrative law, the paucity of information
regarding it, particularly at the state level, is appalling. Even the term
"administrative law" has not been provided any precise definition . . . ?'^
- Furthermore, the relative novelty of administrative procedure
contributed to the use of procedural attacks to accompUsh substantive
goals.^^ This reaction explains the business and bar associations' strident
attacks on agencies in the mid-twentieth century. The principal reason for
the creation of APAs was to control agencies.
A major breakthrough in the battie over administrative procedure
occurred in 1939, when President Roosevelt ordered the attorney general
to appoint a comtnittee to investigate the "need for procedural reform" of
16. i'ee George B. Shepherd, Fierce Compromise: TheAdrmnistrative Procedure Act Emerges From New
Deal Politics, 90 Nw. U. L. REV. 1557,-1560 (1996) ("[r]he more than a decade of poütical combat that
preceded the adoption of the [Administrative Procedure Act] was one of the major political struggles
in the war between supporters and opponents of the New Deal.").
17. James M. Landis, Crudal Issues in Administrative Law—The Walter-Logan Bill, 53 HARV. L.
REV. 1077,1078 (1940) (emphasis added).
18. i'ee George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New
Deal Politics, 90 NW. U. L. REV. 1557, 1558-59 (1996) (describing tiie poücy-shaping power of the
agencies brought about by the New Deal).
19. 7i/. at 1562.
20. i'ee Wüliam J. Pierce, The Act As Viewed by an Academidan, 16 ADMIN. L. REV. 50, 50 (1963)
(recognizing the concern of unchecked exercise of governmental powers).
21. WilUam J. Pierce, The Act As Viewed hy an Academidan, 16 ADMIN. L. REV. 50, 50 (1963).
22. iee James M. Landis, Crudal Issues in Administrative Law—The Walter-Logan Bill, 53 HARV. L.
REV. 1077, 1078 (1940) (maintaining that some of the proponents who amended the National Labor
Relations Act did so not because of procedural reasons, but rather, because of other substantive
ST. MARY'S LAW JOURNAL
This committee, endded the Attorney General's
Committee on Administradve Procedure (AG Committee), issued its final
report in 1941.^''^ The majority (seven of eleven members) made
recommendadons for procedural reform that included provisions for
disseminadon of administradve informadon and .pubüc access to
informadon, fair procedure in informal and formal adjudicadon, and
Creadon of nüemaking procedure.-^
The members comprising the
minority agreed with the majority, but urged that, in addidon to the
majority proposals, provisions were necessary on separadon of fancdons,
judicial review, and more detailed agency procedure that was consistent
with current nodons of fundamental fairness.^''
After World War II ended, many perceived that government
administradve acdon had effecdvely accompüshed tasks of enormous
scope and complexity during the war.^^ In 1945, the Attorney General
proposed a federal administradve procedure act to the United States
House and Senate. Both houses were recepdve, and enacted the Federal
Administradve Procedure Act in
State Administrative Procedure Act Developments
During the same period, extensive acdon regarding administradve
procedure occurred at the state level. In 1937, the American Bar
Associadon Secdon on Judicial Administradon created the Special
Committee on Administradve Procedure that produced a 1938 report on
state administradve procedure.^^ In 1939, the Committee produced a
draft administradve procedure act.^° The draft act was referred to the
ULC, which began intensive research and drafdng over several years.''^
Although the ULC had prepared and approved a model administradve
23. ADMINISTRATIVE PROCEDURE IN GO'VERNMENT AGENCIES, S. DOC. N O . 8, at l (l 941).
24. Id. at Letter of Submittal
25. See id at 25-26, 35, 61, 101-02, 114-15 (detailing each of the provisions the majority
sought in order to reform administrative procedure).
26. Id at 203;
27. See Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 'VA. L. REV. 219, 2 2 9 30 (1986) (explaining the impact of World War II in subsiding the Committee's goals of creating a
generaüy appücable statute whue stUl balancing the need for individual agency action).
28. Id at 230-32.
29. See Bernard Schwartz, The Model State Administrative Procedure Aa, 1 RUTGERS L. REV. 431,
437 (1953) (crediting this committee's report as giving "major impetus to constructive thinking about
State administrative action" (quoting E: Blythe Stason, The Model Administrative Procedure Act, 33 IOWA
31. Id.\ see also 1 FRANK E. COOPER, STATE ADMINISTRATIVE LAW 9 (1965) (noting the
extensive and thorough evaluation of the draft act by the ULQ.
2010 MODEL STA TE ADMINISTRA TIVE PROCEDURE A er
procedure act by 1941, when the AG Committee filed a second report that
year, the Conference began an exhaustive review of its existing draft act
that took into account the new federal report, as weü as the "Benjamin
Report" from New York.-^^ After numerous revisions and extensive
research, the ULC adopted the Model State Administrative Procedure Act
of 1946.^^ Immediately, several states heavüy reUed on the provisions of
the 1946 MSAPA to serve as a guidepost in designing their own state
The Significance of Drafting a Model Act
Prior to the adoption of the federal and state APAs, there was
considerable discussion on how to draft procedure acts for agencies.^^
Although many analysts argued for comprehensive procedural codes, a
substantial number of commentators emphasized that it was impossible to
fashion a uniform, comprehensive code to govern the activities of aU
agencies.'^'^ This group argued that orüy a general set of basic fairness
principles would enable APA drafters to offer guidance to aU entities
seeking to create codes of administrative procedure: "What is needed is
32. 4 ROBERT M. BENJAMIN, ADMINISTRATIVE ADJUDICATION IN THE STATE OF NEW
YORK—REPORT TO HONORABLE HERBERT H. LEHMAN 1 (1942); see also 1 FRANK E. COOPER,
STATE ADMINISTRATIVE LAW 10 (1965) (explaining the significance of the Benjamin Report's
critique of state administrative practice and procedure).
33. MODEL ST. ADMIN. PROC. ACT, Historical Notes (1961), 15 U.L.A. 174 (2000).
34. See Arthur Earl Bonfield, The Federal APA and State Administi'ative Law, 72 VA. L. REV. 297,
297 (1986) (pointing out that the states relied on the general concepts of the Model State
Administrative Procedure Act when creating their own laws).
35. See Walter Geühorn, The Administi-ative Procedure Act: The Beginnings, 72 VA. L. REV. 219, 225
(1986) (focusing on the extensive research). Indeed, there was no shortage of reports regarding the
Altogether, before the Committee concluded its activity', some forty separate agencies and
distinct entities within departments were studied; twenty-seven descriptive and evaluative
"monographs" were prepared for pubUcation; the fruits of the staffs researches were made
avaüable to the agencies involved and were discussed by them with the fuü committee; and, after
pubüc notice as weü as individual invitations to [one hundred thousand] persons whose presence
on various üsts indicated some measure of interest, pubüc hearings were held to receive oral or
written opinions about administrative procedure.
Id;, see also MODEL ST. ADMIN. PROC. ACT, Prefatory Note (1961), 15 U.L.A. 175-76 (2000)
(summarizing the numerous steps, revisions, and reports considered before adoption of the 1946
36. See ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, S. DOC. NO. 8, at 2, 28
(1941) (discussing the criticisms faced by the Committee and its plans for addressing potential
problems of rigid appUcation across agencies); see also 4 ROBERT M. BENJAMIN, ADMINISTRATIVE
ADJUDICATION IN T H E STATE O F N E W Y O R K — R E P O R T TO HONORABLE HERBERT H . LEHMAN
35—36 (1942) (delineating numerous reasons a uniform code would be impractical).
ST. MARY'S LAW JOURNAL
not a detaüed code but a set of principles and a statement of legisladve
poUcy. The prescribed pattern need not be, and shoiüd not be, a rigid
mold. There should be ample room for necessary changes and ñül
aüowance for differing needs of different agencies."^^ This descripdon by
the AG Committee could serve as a definidon for a model act; the ULC
foUowed it in drafdng die 1946 MSAPA.^^
After the ULC enacted the 1946 MSAPA as a model act, the drafters of
the 1961 MSAPA foUowed die same drafting technique.^^ This was a
cridcaUy important choice. It occurred despite the fact that the ULC
inidaUy sought to promiügate a uniform state administrative procedure act:
"OriginaUy the Nadonal Conference had thought of its measure as a
'uniform act' rather than a 'model act' . . . . However,... it became
apparent that there were wide and . . . irreconcüable diversides in statutory
pracdces ki effect ki various states of the Union.'"*°
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