TITLE 63.  STATE AFFAIRS IN GENERAL
                      CHAPTER 46b.  ADMINISTRATIVE PROCEDURES ACT

                                  Utah Code Ann. § 63-46b-3  (2000)

§ 63-46b-3.  Commencement of adjudicative proceedings

   (1) Except as otherwise permitted by Section 63-46b-20, all adjudicative proceedings shall be commenced by either:
   (a) a notice of agency action, if proceedings are commenced by the agency; or
   (b) a request for agency action, if proceedings are commenced by persons other than the agency.

(2) A notice of agency action shall be filed and served according to the following requirements:
(a) The notice of agency action shall be in writing, signed by a presiding officer, and shall include:
      (i) the names and mailing addresses of all persons to whom notice is being given by the presiding officer, and the name, title, and mailing address of any attorney or employee who has been designated to appear for the agency;
      (ii) the agency's file number or other reference number;
      (iii) the name of the adjudicative proceeding;
      (iv) the date that the notice of agency action was mailed;
      (v) a statement of whether the adjudicative proceeding is to be conducted informally according to the provisions of rules adopted under Sections 63-46b-4 and 63-46b-5, or formally according to the provisions of Sections 63-46b-6 to 63-46b-11;
      (vi) if the adjudicative proceeding is to be formal, a statement that each respondent must file a written response within 30 days of the mailing date of the notice of agency action;
      (vii) if the adjudicative proceeding is to be formal, or if a hearing is required by statute or rule, a statement of the time and place of any scheduled hearing, a statement of the purpose for which the hearing is to be held, and a statement that a party who fails to attend or participate in the hearing may be held in default;
      (viii) if the adjudicative proceeding is to be informal and a hearing is required by statute or rule, or if a hearing is permitted by rule and may be requested by a party within the time prescribed by rule, a statement that the parties may request a hearing within the time provided by the agency's rules;
      (ix) a statement of the legal authority and jurisdiction under which the adjudicative proceeding is to be maintained;
      (x) the name, title, mailing address, and telephone number of the presiding officer; and
      (xi) a statement of the purpose of the adjudicative proceeding and, to the extent known by the presiding officer, the questions to be decided.
(b) When adjudicative proceedings are commenced by the agency, the agency shall:
      (i) mail the notice of agency action to each party;
      (ii) publish the notice of agency action, if required by statute; and
      (iii) mail the notice of agency action to any other person who has a right to notice under statute or rule.

(3) (a) Where the law applicable to the agency permits persons other than the agency to initiate adjudicative proceedings, that person's request for agency action shall be in writing and signed by the person invoking the jurisdiction of the agency, or by his representative, and shall include:
      (i) the names and addresses of all persons to whom a copy of the request for agency action is being sent;
      (ii) the agency's file number or other reference number, if known;
      (iii) the date that the request for agency action was mailed;
      (iv) a statement of the legal authority and jurisdiction under which agency action is requested;
      (v) a statement of the relief or action sought from the agency; and
      (vi) a statement of the facts and reasons forming the basis for relief or agency action.
   (b) The person requesting agency action shall file the request with the agency and shall send a copy by mail to each person known to have a direct interest in the requested agency action.
   (c) An agency may, by rule, prescribe one or more printed forms eliciting the information required by Subsection (3)(a) to serve as the request for agency action when completed and filed by the person requesting agency action.
   (d) The presiding officer shall promptly review a request for agency action and shall:
      (i) notify the requesting party in writing that the request is granted and that the adjudicative proceeding is completed;
      (ii) notify the requesting party in writing that the request is denied and, if the proceeding is a formal adjudicative proceeding, that the party may request a hearing before the agency to challenge the denial; or
      (iii) notify the requesting party that further proceedings are required to determine the agency's response to the request.
   (e) (i) Any notice required by Subsection (3)(d)(ii) shall contain the information required by Subsection 63-46b-5(1)(i) in addition to disclosure required by Subsection (3)(d)(ii) of this section.
      (ii) The agency shall mail any notice required by Subsection (3)(d) to all parties, except that any notice required by Subsection (3)(d)(iii) may be published when publication is required by statute.
      (iii) The notice required by Subsection (3)(d)(iii) shall:
         (A) give the agency's file number or other reference number;
         (B) give the name of the proceeding;
         (C) designate whether the proceeding is one of a category to be conducted informally according to the provisions of rules enacted under Sections 63-46b-4 and 63-46b-5, with citation to the applicable rule authorizing that designation, or formally according to the provisions of Sections 63-46b-6 to 63-46b-11;
         (D) in the case of a formal adjudicative proceeding, and where respondent parties are known, state that a written response must be filed within 30 days of the date of the agency's notice if mailed, or within 30 days of the last publication date of the agency's notice, if published;
         (E) if the adjudicative proceeding is to be formal, or if a hearing is to be held in an informal adjudicative proceeding, state the time and place of any scheduled hearing, the purpose for which the hearing is to be held, and that a party who fails to attend or participate in a scheduled and noticed hearing may be held in default;
         (F) if the adjudicative proceeding is to be informal, and a hearing is required by statute or rule, or if a hearing is permitted by rule and may be requested by a party within the time prescribed by rule, state the parties' right to request a hearing and the time within which a hearing may be requested under the agency's rules; and
         (G) give the name, title, mailing address, and telephone number of the presiding officer.

(4) When initial agency determinations or actions are not governed by this chapter, but agency and judicial review of those initial determinations or actions are subject to the provisions of this chapter, the request for agency action seeking review must be filed with the agency within the time prescribed by the agency's rules.
(5) For designated classes of adjudicative proceedings, an agency may, by rule, provide for a longer response time than allowed by this section, and may provide for a shorter response time if required or permitted by applicable federal law.
(6) Unless the agency provides otherwise by rule or order, applications for licenses filed under authority of Title 32A, Chapters 3, 4, and 5, are not considered to be a request for agency action under this chapter.
(7) If the purpose of the adjudicative proceeding is to award a license or other privilege as to which there are multiple competing applicants, the agency may, by rule or order, conduct a single adjudicative proceeding to determine the award of that license or privilege.

Utah Code Ann. § 63-46b-4  (2000)

§ 63-46b-4.  Designation of adjudicative proceedings as informal -- Standards -- Undesignated proceedings formal
 

   (1) The agency may, by rule, designate categories of adjudicative proceedings to be conducted informally according to the procedures set forth in rules enacted under the authority of this chapter if:
   (a) the use of the informal procedures does not violate any procedural requirement imposed by a statute other than this chapter;
   (b) in the view of the agency, the rights of the parties to the proceedings will be reasonably protected by the informal procedures;
   (c) in the view of the agency, the agency's administrative efficiency will be enhanced by categorizations; and
   (d) the cost of formal adjudicative proceedings outweighs the potential benefits to the public of a formal adjudicative proceeding.
(2) Subject to the provisions of Subsection (3), all agency adjudicative proceedings not specifically designated as informal proceedings by the agency's rules shall be conducted formally in accordance with the requirements of this chapter.
(3) Any time before a final order is issued in any adjudicative proceeding, the presiding officer may convert a formal, adjudicative proceeding to an informal adjudicative proceeding, or an informal adjudicative proceeding to a formal adjudicative proceeding if:
   (a) conversion of the proceeding is in the public interest; and
   (b) conversion of the proceeding does not unfairly prejudice the rights of any party.

§ 63-46b-5.  Procedures for informal adjudicative proceedings

   (1) If an agency enacts rules designating one or more categories of adjudicative proceedings as informal adjudicative proceedings, the agency shall, by rule, prescribe procedures for informal adjudicative proceedings that include the following:
   (a) Unless the agency by rule provides for and requires a response, no answer or other pleading responsive to the allegations contained in the notice of agency action or the request for agency action need be filed.
   (b) The agency shall hold a hearing if a hearing is required by statute or rule, or if a hearing is permitted by rule and is requested by a party within the time prescribed by rule.
   (c) In any hearing, the parties named in the notice of agency action or in the request for agency action shall be permitted to testify, present evidence, and comment on the issues.
   (d) Hearings will be held only after timely notice to all parties.
   (e) Discovery is prohibited, but the agency may issue subpoenas or other orders to compel production of necessary evidence.
   (f) All parties shall have access to information contained in the agency's files and to all materials and information gathered in any investigation, to the extent permitted by law.
   (g) Intervention is prohibited, except that the agency may enact rules permitting intervention where a federal statute or rule requires that a state permit intervention.
   (h) All hearings shall be open to all parties.
   (i) Within a reasonable time after the close of an informal adjudicative proceeding, the presiding officer shall issue a signed order in writing that states the following:
      (i) the decision;
      (ii) the reasons for the decision;
      (iii) a notice of any right of administrative or judicial review available to the parties; and
      (iv) the time limits for filing an appeal or requesting a review.
   (j) The presiding officer's order shall be based on the facts appearing in the agency's files and on the facts presented in evidence at any hearings.
   (k) A copy of the presiding officer's order shall be promptly mailed to each of the parties.
(2) (a) The agency may record any hearing.
   (b) Any party, at his own expense, may have a reporter approved by the agency prepare a transcript from the agency's record of the hearing.
(3) Nothing in this section restricts or precludes any investigative right or power given to an agency by another statute.

Utah Code Ann. § 63-46b-6  (2000)

§ 63-46b-6.  Procedures for formal adjudicative proceedings -- Responsive pleadings

   (1) In all formal adjudicative proceedings, unless modified by rule according to Subsection 63-46b-3(5), the respondent, if any, shall file and serve a written response signed by the respondent or his representative within 30 days of the mailing date or last date of publication of the notice of agency action or the notice under Subsection 63-46b-3(3)(d), which shall include:
   (a) the agency's file number or other reference number;
   (b) the name of the adjudicative proceeding;
   (c) a statement of the relief that the respondent seeks;
   (d) a statement of the facts; and
   (e) a statement summarizing the reasons that the relief requested should be granted.

(2) The response shall be filed with the agency and one copy shall be sent by mail to each party.
(3) The presiding officer, or the agency by rule, may permit or require pleadings in addition to the notice of agency action, the request for agency action, and the response. All papers permitted or required to be filed shall be filed with the agency and one copy shall be sent by mail to each party.

§ 63-46b-8.  Procedures for formal adjudicative proceedings -- Hearing procedure

   (1) Except as provided in Subsections 63-46b-3(d)(i) and (ii), in all formal adjudicative proceedings, a hearing shall be conducted as follows:
   (a) The presiding officer shall regulate the course of the hearing to obtain full disclosure of relevant facts and to afford all the parties reasonable opportunity to present their positions.
   (b) On his own motion or upon objection by a party, the presiding officer:
      (i) may exclude evidence that is irrelevant, immaterial, or unduly repetitious;
      (ii) shall exclude evidence privileged in the courts of Utah;
      (iii) may receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document;
     (iv) may take official notice of any facts that could be judicially noticed under the Utah Rules of Evidence, of the record of other proceedings before the agency, and of technical or scientific facts within the agency's specialized knowledge.
   (c) The presiding officer may not exclude evidence solely because it is hearsay.
   (d) The presiding officer shall afford to all parties the opportunity to present evidence, argue, respond, conduct cross-examination, and submit rebuttal evidence.
   (e) The presiding officer may give persons not a party to the adjudicative proceeding the opportunity to present oral or written statements at the hearing.
   (f) All testimony presented at the hearing, if offered as evidence to be considered in reaching a decision on the merits, shall be given under oath.
   (g) The hearing shall be recorded at the agency's expense.
   (h) Any party, at his own expense, may have a person approved by the agency prepare a transcript of the hearing, subject to any restrictions that the agency is permitted by statute to impose to protect confidential information disclosed at the hearing.
   (i) All hearings shall be open to all parties.
(2) This section does not preclude the presiding officer from taking appropriate measures necessary to preserve the integrity of the hearing.

§ 63-46b-9.  Procedures for formal adjudicative proceedings -- Intervention

   (1) Any person not a party may file a signed, written petition to intervene in a formal adjudicative proceeding with the agency. The person who wishes to intervene shall mail a copy of the petition to each party. The petition shall include:
   (a) the agency's file number or other reference number;
   (b) the name of the proceeding;
   (c) a statement of facts demonstrating that the petitioner's legal rights or interests are substantially affected by the formal adjudicative proceeding, or that the petitioner qualifies as an intervenor under any provision of law; and
   (d) a statement of the relief that the petitioner seeks from the agency.
(2) The presiding officer shall grant a petition for intervention if he determines that:
   (a) the petitioner's legal interests may be substantially affected by the formal adjudicative proceeding; and
   (b) the interests of justice and the orderly and prompt conduct of the adjudicative proceedings will not be materially impaired by allowing the intervention.
(3) (a) Any order granting or denying a petition to intervene shall be in writing and sent by mail to the petitioner and each party.
   (b) An order permitting intervention may impose conditions on the intervenor's participation in the adjudicative proceeding that are necessary for a just, orderly, and prompt conduct of the adjudicative proceeding.
   (c) The presiding officer may impose the conditions at any time after the intervention.

§ 63-46b-12.  Agency review -- Procedure

   (1) (a) If a statute or the agency's rules permit parties to any adjudicative proceeding to seek review of an order by the agency or by a superior agency, the aggrieved party may file a written request for review within 30 days after the issuance of the order with the person or entity designated for that purpose by the statute or rule.
   (b) The request shall:
      (i) be signed by the party seeking review;
      (ii) state the grounds for review and the relief requested;
      (iii) state the date upon which it was mailed; and
      (iv) be sent by mail to the presiding officer and to each party.
(2) Within 15 days of the mailing date of the request for review, or within the time period provided by agency rule, whichever is longer, any party may file a response with the person designated by statute or rule to receive the response. One copy of the response shall be sent by mail to each of the parties and to the presiding officer.
(3) If a statute or the agency's rules require review of an order by the agency or a superior agency, the agency or superior agency shall review the order within a reasonable time or within the time required by statute or the agency's rules.
(4) To assist in review, the agency or superior agency may by order or rule permit the parties to file briefs or other papers, or to conduct oral argument.
(5) Notice of hearings on review shall be mailed to all parties.
(6) (a) Within a reasonable time after the filing of any response, other filings, or oral argument, or within the time required by statute or applicable rules, the agency or superior agency shall issue a written order on review.
   (b) The order on review shall be signed by the agency head or by a person designated by the agency for that purpose and shall be mailed to each party.
   (c) The order on review shall contain:
      (i) a designation of the statute or rule permitting or requiring review;
      (ii) a statement of the issues reviewed;
      (iii) findings of fact as to each of the issues reviewed;
      (iv) conclusions of law as to each of the issues reviewed;
      (v) the reasons for the disposition;
      (vi) whether the decision of the presiding officer or agency is to be affirmed, reversed, or modified, and whether all or any portion of the adjudicative proceeding is to be remanded;
      (vii) a notice of any right of further administrative reconsideration or judicial review available to aggrieved parties; and
      (viii) the time limits applicable to any appeal or review.

§ 63-46b-13.  Agency review -- Reconsideration
 

   (1) (a) Within 20 days after the date that an order is issued for which review by the agency or by a superior agency under Section 63-46b-12 is unavailable, and if the order would otherwise constitute final agency action, any party may file a written request for reconsideration with the agency, stating the specific grounds upon which relief is requested.
   (b) Unless otherwise provided by statute, the filing of the request is not a prerequisite for seeking judicial review of the order.
(2) The request for reconsideration shall be filed with the agency and one copy shall be sent by mail to each party by the person making the request.
(3) (a) The agency head, or a person designated for that purpose, shall issue a written order granting the request or denying the request.
   (b) If the agency head or the person designated for that purpose does not issue an order within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.

§ 63-46b-14.  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 63-46b-13(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.

§ 63-46b-15.  Judicial review -- Informal adjudicative proceedings

   (1) (a) 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 78-3a-906; and
      (iii) substantiated findings of abuse or neglect pursuant to Section 62A-4a-116.5.
   (b) Venue for judicial review of informal adjudicative proceedings shall be as provided in the statute governing the agency or, in the absence of such a venue provision, in the county where the petitioner resides or maintains his principal place of business.

(2) (a) The petition for judicial review of informal adjudicative proceedings shall be a complaint governed by the Utah Rules of Civil Procedure and shall include:
      (i) the name and mailing address of the party seeking judicial review;
      (ii) the name and mailing address of the respondent agency;
      (iii) the title and date of the final agency action to be reviewed, together with a duplicate copy, summary, or brief description of the agency action;
      (iv) identification of the persons who were parties in the informal adjudicative proceedings that led to the agency action;
      (v) a copy of the written agency order from the informal proceeding;
      (vi) facts demonstrating that the party seeking judicial review is entitled to obtain judicial review;
      (vii) a request for relief, specifying the type and extent of relief requested; and
      (viii) a statement of the reasons why the petitioner is entitled to relief.
   (b) All additional pleadings and proceedings in the district court are governed by the Utah Rules of Civil Procedure.
(3) (a) The district court, without a jury, shall determine all questions of fact and law and any constitutional issue presented in the pleadings.
   (b) The Utah Rules of Evidence apply in judicial proceedings under this section.

§ 63-46b-16.  Judicial review -- Formal adjudicative proceedings

(1) As provided by statute, the Supreme Court or the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings.
(2) (a) To seek judicial review of final agency action resulting from formal adjudicative proceedings, the petitioner shall file a petition for review of agency action with the appropriate appellate court in the form required by the appellate rules of the appropriate appellate court.
   (b) The appellate rules of the appropriate appellate court shall govern all additional filings and proceedings in the appellate court.
(3) The contents, transmittal, and filing of the agency's record for judicial review of formal adjudicative proceedings are governed by the Utah Rules of Appellate Procedure, except that:
   (a) all parties to the review proceedings may stipulate to shorten, summarize, or organize the record;
   (b) the appellate court may tax the cost of preparing transcripts and copies for the record:
      (i) against a party who unreasonably refuses to stipulate to shorten, summarize, or organize the record; or
      (ii) according to any other provision of law.
(4) The appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following:
   (a) the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied;
   (b) the agency has acted beyond the jurisdiction conferred by any statute;
   (c) the agency has not decided all of the issues requiring resolution;
   (d) the agency has erroneously interpreted or applied the law;
   (e) the agency has engaged in an unlawful procedure or decision-making process, or has failed to follow prescribed procedure;
   (f) the persons taking the agency action were illegally constituted as a decision-making body or were subject to disqualification;
   (g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court;
   (h) the agency action is:
      (i) an abuse of the discretion delegated to the agency by statute;
      (ii) contrary to a rule of the agency;
      (iii) contrary to the agency's prior practice, unless the agency justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency; or
      (iv) otherwise arbitrary or capricious.