ESTABLISH ORDER

CS 387P Judicial Review of Administrative Hearings 

10/18/82 Revised 09/03/08

UCA 62A-11-333 and 63G-4-401, 402

 

CIC: Refer to procedures found in CS 1387 CIC Judicial Review of Administrative Orders for CIC Cases.

 

Statute Authority

 

A party may obtain judicial review of a final agency action (administrative order) issued by the Office of Recovery Services/Child Support Services (ORS/CSS) by filing a petition for judicial review of a final agency action with the district court in the county in which that party lives within 30 days after the date the administrative order was issued in accordance with U.C.A. 62A-11-333.  If a respondent does not believe that any administrative order is correct, s/he may file a petition for judicial review.

 

“63G-4-401.   Judicial review -- Exhaustion of administrative remedies.
     (1) A party aggrieved may obtain judicial review of final agency action, except in actions where judicial review is expressly prohibited by statute.
     (2) A party may seek judicial review only after exhausting all administrative remedies available, except that:
     (a) a party seeking judicial review need not exhaust administrative remedies if this chapter or any other statute states that exhaustion is not required;
     (b) the court may relieve a party seeking judicial review of the requirement to exhaust any or all administrative remedies if:
     (i) the administrative remedies are inadequate; or
     (ii) exhaustion of remedies would result in irreparable harm disproportionate to the public benefit derived from requiring exhaustion.
     (3) (a) A party shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued or is considered to have been issued under Subsection 63G-4-302(3)(b).
     (b) The petition shall name the agency and all other appropriate parties as respondents and shall meet the form requirements specified in this chapter.”

The court will decide, by "trial de novo," (a new hearing where all evidence is considered) all questions of fact and law, and any constitutional issues raised in the petition, which means that the judge will set the parameters for the hearing. 

 

U.C.A. 63G–4-402 (1) (a),states, “The district courts have jurisdiction to review by trial de novo all final agency actions resulting from informal adjudicative proceedings, except that the juvenile courts have jurisdiction over all state agency actions relating to:
     (i) the removal or placement of children in state custody;
     (ii) the support of children under Subsection (1)(a)(i) as determined administratively under Section 78A-6-1106; and
     (iii) substantiated findings of abuse or neglect made by the Division of Child and Family Services, after an evidentiary hearing.”

 

The hearing may involve a full hearing on the facts, a mere review of the record, testimony by the Presiding Officer, and arguments by attorneys, depending on the nature of the petition and decision of the judge.

 

All petitions for Judicial Review served on the Department of Human Services and routed to the Office of Administrative Hearings, the Office of Recovery Services, or the Attorney General, should be rerouted to the appropriate CSS team.

 

Procedures

 

1.                  If you receive a petition requesting judicial review, take the steps listed below.

a.                   Notify the appropriate attorney in the Attorney General’s Office (AGO) of the pending action;

b.                  Send a copy of the petition to the Office of Administrative Hearings, if the order involved is based on an administrative hearing, and the OAH has not previously received a copy.

c.                   Send a copy of the petition to your Regional Director and the Child Support Services (CSS) Director.

d.                  Coordinate the preparation of the case with the AGO.

e.                   Provide supporting material to the appropriate attorney when required.

 

2.                  Upon receipt of a copy of the petition for judicial review, the AGO has responsibility for the steps listed below.

a.                   Obtain copies of the order to be reviewed, pleadings, evidence, and transcripts of testimony taken, if recorded.

b.                  Review all case material including the transcript.

c.                   Review the Department's position with the CSS Director.

d.                  Prepare and file an answer to the petition with the district court within the appropriate period allowed.

e.                   Send a copy of the answer to the petition to the respondent's attorney, or to the respondent if the respondent is not represented by an attorney (retain one copy for the case file).

f.                    Take all necessary steps to complete the appeal process, to include arguing the issues before the District court.

g.                   Notify the CSS Director of the court's decision.

 

3.                  If the Office of Administrative Hearings has conducted a hearing in the proceeding, at the request of the attorney it will prepare a record of the hearing, include copies of the order to be reviewed, pleadings, evidence, and transcripts, and complete the steps listed below.

a.                   Retain one copy of the materials for the hearing file.

b.                  Send the original and two copies of the transcript and a Certificate of the Record to the attorney.

 

4.                  When the results of the judicial review are received, the CSS Director will complete the steps listed below.

a.                   Review the court's findings with the attorney.

b.                  Brief the Regional Director (RD) involved on adverse action and possible consequences.

c.                   Strategize with the RD involved for possible judicial relief.

d.                  Review requested relief with the appropriate attorney.

e.                   Prepare a memorandum outlining CSS’s position and request the AGO file the appropriate action.

f.                    Inform the OAH Director of the results of the judicial review by forwarding a copy of the decision to the OAH.