the proceeding, and all material facts not appearing in the evidence but with respect to which official notice is taken, shall constitute the exclusive record for order or decision. No sanction shall be imposed or rule or order or decision be issued except upon consideration of such exclusive record, or such lesser portions thereof as may be agreed upon by all the parties to such case. The cost incidental to the preparation of a copy or copies of a record or portion thereof shall be borne equally by all parties requesting the copy or copies.

(d) Whenever in a contested case a majority of those who are to render the final order or decision did not personally hear the evidence, no order or decision adverse to a party to the case (other than the Commissioners or an agency) shall be made until a proposed order or decision, including findings of fact and conclusions of law, has been served upon the parties and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to a majority of those who are to render the order or decision, who, in such case, shall personally consider such portions of the exclusive record, as provided in subsection (c) of this section, as may be designated by any party. (e) Every decision and order adverse to a party to the case, rendered by the Commissioners or an agency in a contested case, shall be in writing and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. Findings of fact and conclusions of law shall be supported by and in accordance with the reliable, probative, and substantial evidence. A copy of the decision and order and accompanying findings and conclusions shall be given by the Commissioners or the agency, as the case may be, to each party or to his attorney of record.

JUDICIAL REVIEW

SEC. 11. Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Commissioners or an agency in a contested case, is entitled to a judicial review thereof in accordance with this Act upon filing in the District of Columbia Court of Appeals a written petition for review, except that orders and decisions of the Board of Zoning Adjustment, Commission of Mental Health, Public Utilities Commission, Redevelopment Land Agency, and the Zoning Commission shall be subject to judicial review in those courts which review the orders and decisions of those agencies on the day before the date of enactment of this Act but such judicial review shall be in accordance with this Act. If the jurisdiction of the Commissioners or an agency is challenged at any time in any proceeding and the Commissioners or the agency, as the case may be, take jurisdiction, the person challenging jurisdiction shall be entitled to an immediate judicial review of that action, unless the court shall otherwise hold. The reviewing court may by rule prescribe the forms and contents of the petition and, subject to this Act, regulate generally all matters relating to proceedings on such appeals. A petition for review shall be filed in such court within such time as such court may by rule prescribe and a copy of such petition shall forthwith be served by mail by the clerk of the court upon the Commissioners or upon the agency, as the case may be. Within such time as may be fixed by rule of the court the Commissioners or such agency shall certify and file in the court the exclusive record for decision and any supplementary proceedings, and the clerk of the court shall immediately notify the petitioner of the filing thereof. Upon the filing of a petition for review, the court shall have jurisdiction of the proceeding, and shall have power to affirm, modify, or set aside the order or decision complained of, in whole or in part, and, if need be, to remand the case for further proceedings, as justice may require. Filing of a petition for review shall not in itself stay enforcement of the order or decision of the Commissioners or the agency, as the case may be. The Commissioners or the agency may grant, or the reviewing court may order, a stay upon appropriate terms. The court shall hear and determine all appeals upon the exclusive record for decision before the Commissioners or the agency. The review of all administrative orders and decisions by the court shall be limited to such issues of law or fact as are subject to review on appeal under applicable statutory law, other than this Act. In all other cases the review by the court of administrative orders and decisions shall be in accordance with the rules of law which define the scope and limitations of review of administrative proceedings. Such rules shall include, but not be limited to, the power of the court

(1) so far as necessary to decision and where presented, to decide all relevant questions of law, to interpret constitutional and statutory provisions, and to determine the meaning or applicability of the terms of any action;

(2) to compel agency action unlawfully withheld or unreasonably delayed; and

(3) to hold unlawful and set aside any action or findings and conclusions found to be (A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations or short of statutory jurisdiction, authority, or limitations or short of statutory rights; (D) without observance of procedure required by law, including any applicable procedure provided by this Act; or (E) unsupported by substantial evidence in the record of the proceedings before the court.

In reviewing administrative orders and decisions, the court shall review such portions of the exclusive record as may be designated by any party. The court may invoke the rule of prejudicial error. Any party aggrieved by any judgment of the District of Columbia Court of Appeals under this Act may seek a review thereof by the United States Court of Appeals for the District of Columbia Circuit in accordance with section 8 of the Act entitled "An Act to consolidate the Police Court of the District of Columbia and the Municipal Court of the District of Columbia, to be known as "The Municipal Court for the District of Columbia', to create "The Municipal Court of Appeals for the District of Columbia', and for other purposes", approved April 1, 1942 (D.C. Code, sec. 11–773).

REPEALS

SEC. 12. Subsections (e) and (f) of section 7 of the Act entitled "An Act to consolidate the Police Court of the District of Columbia and the Municipal Court of the District of Columbia, to be known as "The Municipal Court for the District of Columbia', to create "The Municipal Court of Appeals for the District of Columbia', and for other purposes", approved April 1, 1942 (D.C. Code, sec. 11-772), are hereby repealed. This section shall take effect one hundred and eighty days after the date of enactment of this Act.

Mr. DOWDY. The first witnesses are from the Bar Association of the District of Columbia, Mr. Paul F. McArdle, president; and Mr. Alfred L. Scanlan, and Mr. Manual J. Davis.

Will you come around together, identify yourselves for the reporter, and then proceed.

STATEMENTS OF PAUL F. MCARDLE, PRESIDENT, BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA; ALFRED L. SCANLAN AND MANUAL J. DAVIS, MEMBERS OF BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA

Mr. DAVIS. Mr. Chairman and gentleman of the committee, my name is Manual J. Davis, a member of the Bar Association of the District of Columbia, and I have served on its law legislative committee.

At the request of the District Bar Association, Mr. McMillan has introduced H.R. 7067, a bill to prescribe administrative procedures for the District of Columbia government.

We have two persons who will speak in behalf of the bar association and its report on the proposed bill. The first speaker will be Mr. Paul F. McArdle, our recently elected president of the District of Columbia Bar Association; and our principal speaker, who will speak on the merits of the proposed bill, is Mr. Alfred L. Scanlan.

At this time I would like to introduce to the committee the president of our association, Mr. Paul F. McArdle, who will make a short statement.

Mr. Dowdy. All right, Mr. McArdle.

Mr. MCARDLE. Good morning, Mr. Chairman and members of the committee. We appreciate the courtesy of being here this morning. This is a bill, as you know, that has been worked on thoroughly by the bar association together with members of the subcommittee. Mr. Scanlan, who will be the principal speaker, has been closely identified with this since 1960. At present he is a member of our board of directors and will make the principal statement.

We thank you for your courtesy.

Mr. DOWDY. Mr. Scanlan, we will be glad to hear from you.

Mr. SCANLAN. Mr. Chairman and members of the committee, my name as indicated, is Alfred L. Scanlan. I am a member of the bar of the District of Columbia and a member of the Board of Directors of the Bar Association of the District of Columbia. As President McArdle has advised the committee, I have been designated to present the bar association's position in support of H.R. 7067.

I have a prepared statement which I think has been handed up to you. I will not read this word for word because I think that is boring, but I will, in general, follow the outline of the prepared statement. As Mr. McArdle has indicated, this is no Johnny-come-lately. As far back as 1955 the bar association was considering the drafting of an Administrative Procedure Act for the District of Columbia. At that time a draft was prepared and I think Mr. Kneipp, who is here today to testify against the bill, played some part in drafting the original draft.

There was also a bill in 1956 before the subcommittee of this committee, and there was a suggestion that maybe the bar association and the Corporation Counsel's Office might get together and work out certain technical changes. There followed a number of years of further study. The members of the bar association worked on it, and certainly we tried to take into account that the District of Columbia is different from a State; it is more a city, perhaps, than a State but has the characteristics of both and we tried to fit the provisions of the bill to be effectively applicable to the District of Columbia.

There was a hearing before this subcommittee in May 1963. Again the Corporation Counsel's Office, or the Commissioners through the Corporation Counsel's Office, opposed the bill on the grounds it was not necessary and in addition would be an expense to administer.

After that some of us sat down with members of the staff of this committee and went over the bill very carefully. There were a number of stylistic changes. I do not think there were any changes of substance but there was an effort to polish the bill in such way that it was not only satisfactory to this committee but to the legislative drafting office of the Congress.

As you can see by the statement submitted by the Commissioners, this bill is opposed by them. While they concede the need for the reform of administrative process, their position is (1) the need for minimum standards in administrative procedures for the District of Columbia is not established; and (2) if there is need for any of these reforms it can be achieved through the rulemaking powers which the Commissioners possess.

We will concede that there have been improvements effected by the Commissioners themselves, particularly in connection with the Department of Inspections and Licenses and the Board of Appeals and Review to which appeals from the Department of Inspection and Licenses lie, but our position is that still much remains to be done, particularly in the Department of Occupations and Professions, which is a hodgepodge.

Attached to my prepared statement is a section-by-section analysis of the bill, but I would like to touch on three principal provisions of the bill.

First, it provides for the compilation and publication in the District of Columbia Register of all rules and regulations of the administrative agencies of the District of Columbia which are currently in effect, and requires that prior to the adoption of any rule, or the amendment or repeal of any rule, a notice of such intended action must be published in the District of Columbia Register, thus affording interested persons the opportunity to submit data or facts on proposed rules or changes in administrative rules before final action is taken by the agency. There would be a central repository of all the rules of the different boards. In addition, all the boards would be required to publish their procedural rules and have them published in turn in the District of Columbia Register where the lawyers and the public who would be affected by such rules could find them.

Interestingly enough, about 2 years ago there was a Law Review article found in 30 District of Columbia Bar Association Journal 395, and I would like to file as exhibit A in this proceeding a copy of that article because it goes into details I would not have time to go into today.

Mr. Dowdy. That will be made a part of the record following your

statement.

Mr. SCANLAN. Thank you.

That article, which was published 2 years ago, calls attention to the fact that out of the 22 constituent agencies of the Department of Occupations and Professions, 14 had no procedural rules at all and the other 8 varied. Some, like the Nurses' Board and the Hacker's Board, had pretty good rules, but 14 had no rules at all. In his article Mr. Harrison points out that among rules that were published, many contained "little or no exposition of one's rights, few procedural details, inadequate references to the availability and types of hearings, no hint as to appellate review, vague, or incomplete statements as to applicable standards, and no references to statutory citations."

I think some of the deficiencies to which Mr. Harrison called attention in his article have been rectified in part by the Commissioners of the District of Columbia.

The second major purpose of the bill is to provide the opportunity of a hearing for all parties in what we might call quasi-adjudicated cases or contested cases-that is, cases where some other statute, expressly or impliedly, requires a hearing. In those cases this bill would prescribe certain minimum standards of procedures.

We do try, through this bill, to cut down if not eliminate opportunities for ex parte communications and the lack of disinterestedness on the part of the members concerned. I do not say this bill goes as far in eliminating ex parte communications as we would like, but it goes

a long way in requiring official notice of the facts to be given to the parties concerned so that they have an opportunity to rebut them.

I am sure some of you, from reading the papers in the last few years, are aware of the fact there have been many instances where licenses have been denied or revoked in the case of pawnbrokers, cabdrivers, automobile salesmen, and practical nurses, et cetera, where the particular licensing board or commission concerned based their denial or revocation on evidence not found in the record before the agency. Under our bill this would be minimized.

A well-publicized case illustrating the present susceptibility of administrative agencies of the District of Columbia to ex parte advice is Jarrott v. Scrivener (225 F. Supp. 827): In that case the Zoning Board of Adjustment granted an exception in order to pave the way for the construction of a new building for the Soviet Embassy. The Board's decision was attacked by an action instituted in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief against the Board's decision on the ground that members of the Board had been secretly informed that highly placed persons in the Federal Government and indeed the District government had made it clear to members of the Board that both the Federal and District Governments desired that the Board grant the application. The court did overturn the decision of the Board, but in doing so the court had to admit that it had to go pretty far to look beyond an administrative record which was clear on its face.

If our bill were enacted I think there would be a further minimization of this kind of thing-that is, where you have facts dehors an administrative record taken into account by the administrative board. There is little or no excuse for this except in the rarest of cases and our bill, we hope, in section 10(c), would cut down on that tremendously. I would not say it would eliminate it. I think we should try it for a while and see if it would work, and if not, possibly modify it. The third important general purpose of the bill is to provide for a uniform means whereby the final determination of any agency in a contested case could be reviewed in accordance with clearly spelled out standards of judicial review. Judicial review of the decisions of many agencies of the District of Columbia government is now permitted, but, again, we have a hodgepodge of situations. On page 8 of my statement, in footnote 2, we set forth by illustrations some of the channels of judicial review by administrative agencies.

You have review by the Court of Appeals of the District of Columbia and final review by the Court of Appeals for the District of Columbia Circuit which would include the Board of Barber Examiners, the Commission on Licensure to Practice the Healing Art, Physical Therapists' Examining Board, and Practical Nurses' Examining Board.

On the other hand, revocation of licenses would be only by District Court for the District of Columbia upon motion of the Board of Dental Examiners, Board of Podiatry Examiners, et cetera.

In one case there is no review but only an appeal to the Board of Commissioners, whose action is final. That is in the case of the Board of Cosmetology. So we have a hodgepodge method of review.

Under this bill all reviews would lie initially in the new Court of Appeals for the District of Columbia except in specified cases where