Motions to Reconsider and Administrative Reviews. An Attorney | Lawyer’s Prospective When Administrative Personnel or Judges get it Wrong in Washington.
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Every lawyer or firm with sufficient career experience has had a judge or commissioner for whatever reason simply get it wrong. It happens in the best-prepared cases and is part of the unpredictability of having another human being judge a case. Mistakes, personal bias, ignorance, careers, political viewpoints and even personal animosity can affect a judge’s opinion of a particular administrative law case.
It is for this reason experienced administrative law lawyers or courtroom lawyers are always talking about “the record” because “the record” is how you and your lawyer go over a judge or commissioner’s head too appeal a bad ruling.
The Record – Properly setting up a Motion to Reconsider or Administrative Review
In formal criminal or civil cases conducted in a courtroom in front of judges and juries, the objects, paperwork or whatever is presented in court, commonly called exhibits in legal jargon, are entered into evidence and the entire proceeding is recorded, however, administrative law matters often cut corners and the formalities afforded to you in a Washington Superior Court criminal or civil case are not the same formalities afforded to you in an administrative law proceeding. When results matter, this can be a real problem if the formal collection of evidence, information or testimony that a judge relied on to form an opinion is not complete because corners were cut, hearings were not recorded, or evidence was not properly entered or noted. If you are going to going to go over a commissioner or judge’s head, you are almost always limited to arguing the facts that are on the record i.e. what was formally documented as argued or presented at the hearing where the error happened. If you had an attorney | lawyer throughout the entire process, they should have prepared and litigated the case in such a way that there is a complete record in your Washington administrative law case. However, this is not always the case. Those who represent themselves are rarely aware of this problem and inexperienced or unseasoned lawyers can forget to “make their record” while caught up in the moment of making their case. In administrative law cases, administrative law lawyers and their firms must be especially careful to litigate a case while being creating and preserving a record that is well suited for reconsideration or appeal. Do not be caught unaware with a lawyer or firm who doesn’t know better, is lazy or simply inexperienced.
If you get a wrong ruling, administrative rules generally have very tight deadlines you must comply with. In some cases, you must first exhaust internal administrative appeals before you can appeal to an independent judiciary like a presiding Superior Court judge. Be very careful to hire counsel who takes the time to understand what administrative appeals must be exhausted before appealing a case to an independent court as failure to do so can be catastrophic. Cases have gone to the US Supreme Court over this issue and those who do not follow technical administrative rules run a very real chance of losing on a technicality.
In terms of deadlines, one of the first options lawyers often exhaust is a petition to reconsider. A party may file a Petition for Reconsideration with the adjudicative officer, asking that he or she reconsider the ruling for a variety of reasons. Most adjudicative hearings allow this option because they want administrative law commissioners or judges to fix their own obvious errors. The place of filing and other procedures depend on the particular administrative agency involved but keep in mind a petition to reconsider will not stop an order from going into effect, rather it is just a simple and cost effective way of asking a judge to “reconsider” an legally obvious error. When the record is clear, and the Petition to Reconsider is filed and written respectfully, objectively and too the point, we have had judges “reconsider” their rulings.
Keep in mind while you wait for the adjudicative officer or judge to reconsider, you must still follow the order. Also keep in mind that the general rules in Washington hold that if the officer does not respond to the petition within 20 days from the date of its filing, the petition is deemed denied. A response from an administrative law judge or commissioner must be in written form and can consist of a full denial of the petition, a granting of the petition and dissolving or modifying the final order, or granting the petition and scheduling a future hearing. If the petition to reconsider is denied, the time for filing some sort of internal appeal or external judicial review generally begins. Keep in mind the original adjudicative officer who made the ruling is almost always the individual “reconsidering” the ruling so make sure the motion is drafted appropriately and with the right tone.
Another initial option that is sometimes available is the possibility of requesting a stay from the presiding or reviewing judge or commissioner. The request must be filed within 10 days of service of the final order unless there is a specific statute stating differently or the final order provides a different timeline. A stay stops the final order from going into effect for a period time. This is typically done in conjunction with an appeal. If you appeal but there is no stay, then the order will go into effect even while you are still in the process of appeal. An appeal can take a long time so a stay, if allowed, may be vital in many circumstances. There are many instances where even if you won the appeal in the long run, you have already suffered extensive losses due to having to follow the original order so exploring the possibility of a stay is always wise. For example, if you received a 90 day driver’s license suspension which goes into effect at the time of the final order and an appeal will take 6 months – an appeal is almost pointless without a stay. The suspension will have already occurred by the time you have your appeal has been heard.
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