We have all heard the saying, “you can’t beat city hall” but does anyone ever ask why? Most people probably think it’s because government is corrupt, or that it has so much power that the little guy has no chance. In reality, the problem is that under administrative law, the courts give the government a presumption of being right. In other words, if you want to challenge a law or ordinance or agency decision, you have the burden of proving that the decision was wrong or the law is invalid.

This is because the states are assumed to have “police powers” over all things that the federal government has not reserved for itself. These police powers don’t necessarily mean that the police will be the ones enforcing the rule, it means that the state and local government have the power to regulate that issue. See last week’s post to get a better understanding of burden of proof and police powers. What is relevant here is that “city hall” has an ace up its sleeve.

I will be doing a two-part post on this issue over the next two weeks because I think few people outside of the law understand this and it affects everything we do from what we eat to how our cars are built, to what we do at work. Your house or apartment was built based on a public planning process that is part of the police powers. It controls nearly everything, but the secret is you can challenge it……if you know the law.

So why should you care one way or the other? Well, to apply it to the local Wahkiakum County issues, your interests are probably involved in some sort of litigation right now. Currently the county and the State of Washington’s Department of Ecology are in a fight as to whether cities like Olympia and Vancouver can spread treated sewage sludge (known as bio-solids) on Wahkiakum County fields. If you are a commercial or sport fisherman and are concerned about the increasing numbers of sea lions killing salmon in the Columbia River, your interests are an administrative law case. If you believe that the states should release more hatchery fish, your interests are being argued in court. If you are a Columbia River gill netter being put out of business by new fish and wildlife rules….you’re fighting administrative law. Everything from animal rights to zoning are all admin law and therefore subject to “the presumption.”

So what is this presumption? Well it’s a legal device designed to keep the courts from being inundated by a tsunami of challenges to every administrative decision that someone doesn’t like. It makes it tough to challenge something so that you can’t just do it as delaying or stalling tactic. For agency decisions, you have the requirement of showing that the agency acted arbitrarily and capriciously and was clearly erroneous about their decision based on the record provided to the court. This is why you will see admin law attorneys, meticulously filing documents into the court’s record upon which the judges base their decisions. The judges are only supposed to use what is in the record. They don’t always do that but they are supposed to.

The other interesting thing about administrative law is that there are no juries. In fact, in some cases you may not even get a regular judge, you may get an Administrative Law Judge (ALJ). These ALJ’s only hear administrative cases and usually have years of experience litigating these types of cases. The other thing is you usually don’t have witnesses and testimony made in court. Instead the lawyers prepare briefs and make arguments that apply the facts to the laws and administrative rules. The downside is that you will likely never see an administrative court drama on TV because they just aren’t that exciting. However, they certainly are more important to us all than the most sensational murder case can be because in the murder case, the fate of one person hangs in the balance, but in administrative law, all of our fates are at stake, whether we know it or not.

Next week I will discuss the most famous case in Administrative law, known as the Chevron decision. Trust me, it goes way beyond pumping gas. Until then…..stay tuned.