record is in accordance with the recommendations of the Hoover Commission Task Force report.

The corresponding provisions of the Federal Administrative Procedure Act are: "SEC. 4. In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved (1) any matter subject to a subsequent trial of the law and the facts de novo in any court; (2) the selection or tenure of an officer or employee of the United States other than examiners appointed pursuant to section 1010 of this title; (3) proceedings in which decisions rest solely on inspections, tests, or elections; (4) the conduct of military, naval, or foreign affairs functions; (5) cases in which an agency is acting as an agent for a court; and (6) the certification of employee representatives—

"(a) Persons entitled to notice of an agency hearing shall be timely informed of (1) the time, place, and nature thereof; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted. In instances in which private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the times and places for hearing, due regard shall be had for the convenience and necessity of the parties or their representatives.

"(b) The agency shall afford all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment where time, the nature of the proceeding, and the public interest permit, and (2) to the extent that the parties are unable so to determine any controversy by consent, hearing, and decision upon notice and in conformity with sections 1006 and 1007 of this title."

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SECTION 10. [Rules of Evidence; Official Notice.] In contested cases:

(1) irrelevant, immaterial, or unduly repetitious evidence shall 4 be excluded. The rules of evidence as applied in [non-jury] civil 5 cases in the [District Courts of this State] shall be followed. 6 When necessary to ascertain facts not reasonably susceptible of 7 proof under those rules, evidence not admissible thereunder may 8 be admitted (except where precluded by statute) if it is of a type 9 commonly relied upon by reasonably prudent men in the conduct 10 of their affairs. Agencies shall give effect to the rules of privilege 11 recognized by law. Objections to evidentiary offers may be made 12 and shall be noted in the record. Subject to these requirements, 13 when a hearing will be expedited and the interests of the parties 14 will not be prejudiced substantially, any part of the evidence may 15 be received in written form;

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[(2) documentary evidence may be received in the form of 17 copies or excerpts, if the original is not readily available. Upon 18 request, parties shall be given an opportunity to compare the copy 19 with the original;]

20 (3) a party may conduct cross-examinations required for a full and true disclosure of the facts;

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(4) notice may be taken of judicially cognizable facts. In addi

23 tion, notice may be taken of generally recognized technical or 24 scientific facts within the agency's specialized knowledge. Parties 25 shall be notified either before or during the hearing, or by refer26 ence in preliminary reports or otherwise, of the material noticed, 27 including any staff memoranda or data, and they shall be afforded 28 an opportunity to contest the material so noticed. The agency's 29 experience, technical competence, and specialized knowledge may 30 be utilized in the evaluation of the evidence.

COMMENT

In this section, two substantial changes from the original Model Act are included: (1) Agencies are required (not merely permitted) to exclude irrelevant, immaterial and unduly repetitious evidence; (2) agencies are required to follow the rules of evidence applied in [non-jury] civil cases in the state courts (subject to the "escape clause" in cases of hardship). Accordingly the standards of proof in administrative adjudication are equated in reasonable degree and so far as possible with those applicable in the courts, thus leading to uniform treatment of evidence in all types of adjudication within the state. The phrase "non-jury" is bracketed because in some states it is difficult to differentiate between the rules followed in jury and non-jury cases.

It is difficult to provide any single standard of evidence which is suitable for all agencies, in all circumstances. A review of State legislation in this area reveals wide departures from the standards of the present Model Act. The departures are in all directions-some, in the direction of permitting the agencies to receive any testimonial offer; others, in the direction of limiting them to common law rules of evidence. The proposed language represents a compromise that owes much to the suggestions of the Hoover Commission Task Force and to provisions in the California, Michigan, North Dakota, Virginia, and Wisconsin statutes.

In addition to these two changes which are of substantial importance, several minor refinements in the provisions of the original Model Act are included.

Provision is made in subsection (2) for use of copies of documentary evidence. This subsection is bracketed to indicate that it is intended for states where the rules of evidence applied in court proceedings impose stricter limits on the use of copies of documentary evidence.

Again the right of cross-examination is made more explicit than in the original Model Act by the use of language similar to that found in the Federal Administrative Procedure Act.

The following are the corresponding provisions of the Federal Act:

"SEC. 7(c). Evidence.-Except as statutes otherwise provide, the proponent of a rule or order shall have the burden of proof. Any oral or documentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence and no sanction shall be imposed or rule or order be issued except upon consideration of the whole record of such portions thereof as may be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence. Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule-making or determining claims for money or benefits or applications for initial licenses any agency may, where the interest of any party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

"SEC. 7(c). Record. The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, shall constitute the exclusive record for decision in accordance with section 8 and, upon payment of lawfully prescribed costs, shall be made available to the parties. Where any agency decision rests on official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary."

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SECTION 11. [Examination of Evidence by Agency.] When in a contested case a majority of the officials of the agency who are 3 to render the final decision have not heard the case or read the 4 record, the decision, if adverse to a party to the proceeding other 5 than the agency itself, shall not be made until a proposal for 6 decision is served upon the parties, and an opportunity is afforded 7 to each party adversely affected to file exceptions and present 8 briefs and oral argument to the officials who are to render the 9 decision. The proposal for decision shall contain a statement of 10 the reasons therefor and of each issue of fact or law necessary 11 to the proposed decision, prepared by the person who conducted 12 the hearing or one who has read the record. The parties by written 13 stipulation may waive compliance with this section.

COMMENT

The purpose of this section is to make certain that those persons who are responsible for the decision shall have mastered the record, either by hearing the evidence, or reading the record or at the very least receiving briefs and hearing oral argument. It is intended to preclude "signing on the dotted line."

The corresponding provisions of the Federal Administrative Procedure Act are: "SEC. 8(a). Action by Subordinates.-In cases in which the agency has not presided at the reception of the evidence, the officer who presided (or, in cases not subject to subsection (c) of section 5, any other officer or officers qualified to preside at hearings pursuant to section 7) shall initially decide the case or the agency shall require (in specific cases or by general rule) the entire record to be certified to it for initial decision. Whenever such officers make the initial decision and in the absence of either an appeal to the agency or review upon motion of the agency within time provided by rule, such decision shall without further proceedings then become the decision of the agency. On appeal from or review of the initial decisions of such officers the agency shall, except as it may limit the issues upon notice or by rule, have all the powers which it would have in making the initial decision. Whenever the agency makes the initial decision without having presided at the reception of the evidence, such officers shall first recommend a decision except that in rule making or determining applications for initial licenses, (1) in lieu thereof the agency may issue a tentative decision or any of its responsible officers may recommend a decision or (2) any such procedure may be omitted in any case in which the agency finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires."

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SECTION 12. [Decisions and Orders.] A final decision or order 2 adverse to a party in a contested case shall be in writing or stated 3 in the record. A final decision shall include findings of fact and

4 conclusions of law, separately stated. Findings of fact, if set forth 5 in statutory language, shall be accompanied by a concise and 6 explicit statement of the underlying facts supporting the findings. 7 If, in accordance with agency rules, a party submitted proposed 8 findings of fact, the decision shall include a ruling upon each pro9 posed finding. Parties shall be notified either personally or by 10 mail of any decision or order. Upon request a copy of the decision 11 or order shall be delivered or mailed forthwith to each party and 12 to his attorney of record.

COMMENT

An attempt is here made to require agency findings to go beyond a mere statement of a general conclusion in the statutory language (e.g., that “public interest, convenience and necessity" will be served) or in language of similar generality. The intent is to require the degree of explicitness imposed by such decisions as Saginaw Broadcasting Company v. Federal Communications Commission (Ct. App. D.C., 1938), 96 Fed. 2d 554, where the court required a statement of the "basic or underlying facts." Several states have concerned themselves with this problem. Missouri has adopted the requirement that findings of fact and conclusions of law shall be "separated." North Dakota and Virginia require that findings shall be "explicit." The desire is to find the proper middle course between a detailed reciting of the evidence on the one hand and the bare statement of the conclusions of fact or the "ultimate" facts on the other. The phrase "underlying facts supporting the finding" seems about right.

The following are the provisions of the Federal Administrative Procedure Act: "SEC. 8(b). Submittals and Decisions.-Prior to each recommended, initial, or tentative decision, or decision upon agency review of the decision of subordinate officers the parties shall be afforded a reasonable opportunity to submit for the consideration of the officers participating in such decisions (1) proposed findings and conclusions, or (2) exceptions to the decisions or recommended decisions of subordinate officers or to tentative agency decisions, and (3) supporting reasons for such exceptions or proposed findings or conclusions. The record shall show the ruling upon each such finding, conclusion, or exception presented. All decisions (including initial, recommended, or tentative decisions) shall become a part of the record and include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record; and (2) the appropriate rule, order, sanction, relief, or denial thereof."

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SECTION 13. [Ex Parte Consultations.] Unless required for the 2 disposition of ex parte matters authorized by law, members or 3 employees of an agency assigned to render a decision or to make 4 findings of fact and conclusions of law in a contested case shall 5 not communicate, directly or indirectly, in connection with any 6 issue of fact, with any person or party, nor, in connection with any 7 issue of law, with any party or his representative, except upon 8 notice and opportunity for all parties to participate. An agency 9 member

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(1) may communicate with other members of the agency, and (2) may have the aid and advice of one or more personal assistants.

COMMENT

This section is intended to preclude litigious facts reaching the deciding minds without getting into the record. Also precluded is ex parte discussion of the law with the party or his representative. No objection is interposed to discussion of the law with other persons, e.g., the attorney general, or an outside expert.

The following are somewhat related provisions of the Federal Administrative Procedure Act:

"SEC. 5(c). Separation of Functions.-The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision or initial decision required by section 8 except where such officers become unavailable to the agency. Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. This subsection shall not apply in determining the applications for initial licenses or to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; nor shall it be applicable in any manner to the agency or any member or members of the body comprising the agency."

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SECTION 14. [Licenses.]

(a) When the grant, denial, or renewal of a license is required 3 to be preceded by notice and opportunity for hearing, the provi4 sions of this Act concerning contested cases apply.

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(b) When a licensee has made timely and sufficient application 6 for the renewal of a license or a new license with reference to any 7 activity of a continuing nature, the existing license does not 8 expire until the application has been finally determined by the 9 agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the 11 agency order or a later date fixed by order of the reviewing court. (c) No revocation, suspension, annulment, or withdrawal of 13 any license is lawful unless, prior to the institution of agency pro14 ceedings, the agency gave notice by mail to the licensee of facts 15 or conduct which warrant the intended action, and the licensee 16 was given an opportunity to show compliance with all lawful 17 requirements for the retention of the license. If the agency finds 18 that public health, safety, or welfare imperatively requires emer19 gency action, and incorporates a finding to that effect in its order,

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