§ Rule 84 Judicial review

Rule 84. Judicial review

(a) Judicial Review of State Agency and Local Government Actions.

(1) Scope of Rule 84. The procedures and standards of review applicable to juridical review of state agency and local government actions shall be as provided by statute. When judicial review of an action of a state agency or local government is expressly provided by statute but no stated procedure or standard of review is provided in that statute, then Rule 84 provides the procedure for the district Court's judicial review. Actions of state agencies or officers or actions of a local government, its officers or its units are not subject to judicial review unless expressly authorized by statute. Rule 84 does not apply to the issuance of writs of mandate, prohibition, quo warranto, certiorari, review, or other common law or equitable writs, but petitions for judicial review under this rule may be filed with or in the alternative to petitions for these common law or equitable writs.

(2) Definitions. The term “action,” “agency,” “judicial review,” “petitioner” and “respondent” have the following meaning in Rule 84:

(A) “Action” means any rule, order, ordinance or other decision or lack of decision of an agency made reviewable by statute.

(B) “Agency” means any non judicial board, commission, department, or officer for which statute provides for the district court's judicial review of the agency's action.

(C) “Judicial review” means the district court's review pursuant to statute of actions of agencies, whether the statutory term for review is appeal or judicial review or some other term, and the term judicial review includes other terms like appeal.

(D) “Petitioner” means the person seeking judicial review and includes other terms like appellant.

(E) “Respondent” means any person responding to the petitioner's request for judicial review of the agency's actions before the district court, including the agency itself.

(b) Filing Petition for Judicial Review.

(1) Unless a different time or procedure is prescribed by statute, a petition for judicial review from an agency to district court must be filed with the appropriate district court within twenty-eight (28) days after the agency action is ripe for judicial review under the statute authorizing judicial review, but the time for filing a petition for judicial review is extended as provided in the next sentence. When the decision to be reviewed is issued by an agency with authority to reconsider its decision, the running of the time for petition for judicial review is suspended by a timely motion for reconsideration, and the full time for petition for judicial review commences to run and is computed from the date of any decision on reconsideration, the date of any decision denying reconsideration, or the date that reconsideration is deemed to be denied by statute by inaction on a petition for reconsideration. Judicial review is commenced by filing a petition for judicial review with the district court, and the petitioner shall concurrently serve copies of the notice of petition for judicial review upon the agency whose action will be reviewed and all other parties to the proceeding before the agency (if there were parties to the proceeding). Proof of service on the agency and all parties shall be filed
with the court in the form required by Rule 5(f).

(2) When a petition for judicial review has been filed the verbatim record or recording of hearings and oral presentations conducted by the agency shall be preserved for purposes of judicial review.

(c) Cross-Petitions for Judicial Review. Unless otherwise provided by statute, when a petition for judicial review is filed, any party or other person with a right to participate in the judicial review may cross-petition for judicial review within fourteen (14) days from the date the party or other person is served with a copy of the petition for judicial review or within the time prescribed for initially petitioning for judicial review, whichever is later.

(d) Petition for Judicial Review--Contents. Unless a different procedure is provided by statute, a petition for judicial review from an agency to the district court filed pursuant to this rule shall contain the following information and statement:

(1) The name of the agency for which judicial review is sought.

(2) The title of the district court to which the petition is taken.

(3) Information such as the date and the heading, case caption or other designation of the agency and the action for which judicial review is sought.

(4) A statement whether there was a hearing or oral presentation before the agency that was recorded or reported, together with an identification of the method of recording or reporting the hearing and the name and address of the person with possession of such recording or reporting when there was one.

(5) A statement of the issues for judicial review that the petitioner then intends to assert on judicial review; provided, the statement of issues may be filed separately within fourteen (14) days after the filing of the petition for judicial review and the list of issues in the petition for judicial review shall not prevent the petitioner from asserting other issues later discovered.

(6) A designation as to whether a transcript is requested.

(7) A certification of the attorney of the petitioner, or affidavit of the petitioner representing himself or herself:

(A) That service of the petition has been made upon the state agency or local government rendering the decision; and

(B) That the clerk of the agency has been paid the estimated fee for preparation of the transcript if one has been requested.

(e) Method and Scope of Review.

(1) Method of Review. When judicial review is authorized by statute, and statute or law does not provide the procedure or standard, judicial review of agency action shall be based upon the record created before the agency. When the authorizing statute provides that the district court may take additional evidence itself upon judicial review, the district court may order the taking of additional evidence upon its own motion or motion of any party to the judicial review. When the statute provides that review is de novo, the appeal shall be tried in the district court on any and all issues, on a new record.

(2) Scope of Review. The scope of judicial review on petition from an agency to the district court shall be as provided by statute.

(f) Payment of Fee--Preparation of Record.

(1) Record to be Prepared. When statute provides what shall be contained in the official record of the agency upon judicial review, the agency shall prepare the record as provided by statute. Otherwise, the documents listed in paragraph (3) of this rule shall constitute the agency record for judicial review. In either case, the parties may stipulate or the district court may order that a partial record may be prepared for judicial review.

(2) Use of Original or Copies. The agency may prepare the originals contained in its official file or a certified copy of its official file, retaining the originals for its records. Upon determination of the petition for judicial review by the district court, and the expiration of the time for appeal to the Supreme Court, any original agency's record shall be returned to the agency together with the order and other disposition rendered by the district court on judicial review.

(3) Record to be compiled when statute does not prescribe the record. The agency's record shall contain the following when the record is not otherwise prescribed by statute:

(A) All original or amended complaints, petitions, applications, claims or other initial pleadings.

(B) All answers or responses to initial pleadings.

(D) All protests or other oppositions filed by a party or persons not parties.

(E) Certificate listing all exhibits identified at hearing.

(F) The findings of fact and conclusions of law, or, if none, any memorandum decision entered by the agency.

(G) The final decision, order or award.

(H) All petitions for rehearing or reconsideration and orders thereon.

(I) All petitions for review and cross-petitions for review.

(J) All requests for additional reporter's transcript or agency's record.

(K) Table of contents and index.

(4) Fees for Preparation of Agency's Record. If the agency has a statute, rule, ordinance, or other provision setting forth a fee for preparation of the agency's record on petition for judicial review, the agency shall charge the fee for preparation of the agency's record. Otherwise, the agency shall charge the fee for copying of public records. Concurrently with filing the petition for judicial review, the petitioner shall pay the agency an estimated fee for preparation of the agency record. The district court may order a copy of the record prepared at agency expense if governing statutes so provide or may order the transcript paid from district court funds upon a finding of indigency.

(5) Lodging of Record. The clerk of the agency shall prepare the record in accordance with this rule and lodge it with the agency within 14 days of the filing of the petition for judicial review for the purpose of settlement of the record in accordance with rule 84(j). The agency may apply to the district court for an extension of time in which to prepare the record which shall be granted only for good cause shown.

(g) Payment of Fee--Preparation of Transcript.

(1) Preparation of Transcript Not Previously Transcribed. Unless otherwise ordered by the district court, any transcript required by this rule to be prepared from previously untranscribed proceedings shall be prepared in the following manner:

(A) Payment of Transcript Fee. Unless otherwise ordered by the district court, the petitioner shall pay the estimated fee for preparation of the transcript as determined by the transcriber prior to filing of the petition for judicial review, and the petitioner shall pay the balance of the fee for the transcript upon its completion. If the agency has a statute, rule, ordinance or other provision setting forth a fee for the preparation of transcripts, the petitioner shall tender that fee for the preparation of the transcript; otherwise, the petitioner shall pay a sum per page for the original and two (2) copies of the transcript to be prepared by the transcriber equal to the dollar amount per page provided for the cost of a transcript prepared by a court reporter under Idaho Code § 1-1105. This sum shall be paid to the person preparing the transcript or such other person as designated by the agency. If the transcript is prepared by a transcriber or reporter privately retained by petitioner, the cost shall be paid by the petitioner as agreed, and for purposes of taxing costs, the cost shall be the same as provided in this rule. The district court may order a transcript prepared at agency expense if governing statutes so provide or may order the transcript paid from district court funds upon a finding of indigency.

(B) Preparation of Transcript. The transcriber shall give a receipt to the person paying the fees and shall thereafter prepare the transcript and lodge it with the agency within fourteen (14) days from the date of the filing of the petition. The transcriber may apply to the district court for an extension of time in which to prepare the transcript, which shall be granted only for good cause shown.

(C) Certificate. The transcript must be examined and certified by the transcriber by a certificate in substantially the following form:

CERTIFICATE OF TRANSCRIPTION

The undersigned does hereby certify that he or she correctly and accurately transcribed and typed the above transcription from the recording of the __________ [describe hearing: e.g., hearing before hearing officer X, oral argument before Commission Y, etc.] which was recorded on (date) in the above entitled proceeding.

Dated and certified to this ___ day of __________.

__________ Transcriber

(2) Certification of Transcript Previously Transcribed. Unless otherwise ordered by the district court, if a transcript was prepared for use of the agency in making its decision, a copy of that transcript may be used upon judicial review to the district court subject to the following conditions:

(A) Payment of Transcript Fee. Unless otherwise ordered by the district court, the petitioner shall pay the estimated fee for preparation of the transcript prior to filing of the petition for judicial review, and the petitioner shall pay the balance of the fee for the copy of the transcript upon its completion. If the agency has a statute, rule, ordinance or other provision setting forth a fee for the copying a previously prepared transcript, the petitioner shall tender that fee for the copying of the transcript; otherwise, the petitioner shall pay a sum of $1.00 per page for a copy of the transcript, to be prepared by the agency or transcriber. This sum shall be paid to the person preparing the copy or such other person as designated by the agency. The district court may order a copy of the transcript prepared at agency expense if governing statutes so provide or may order the transcript paid from district court funds upon a finding of indigency.

(B) Preparation of Copy of Transcript. Upon the payment of the estimated copying fees, the transcriber shall give a receipt to the party paying such fees and shall thereafter prepare the transcript and lodge it with the agency within fourteen (14) days from the date of the filing of the petition. The transcriber may apply to the district court for an extension of time in which to prepare the copy of the transcript, which shall be granted only for good cause shown.

(C) Certificate. The transcript must be examined and certified by the person furnishing the copy by a certificate in substantially the following form:

CERTIFICATE OF TRANSCRIPTION

The undersigned does hereby certify that he or she correctly and accurately copied the transcript previously furnished the (agency), which transcript was transcribed and typed from the recording (or the reporter's notes) of the __________ [describe hearing: e.g., hearing before hearing officer X, oral argument before Commission Y, etc.] which was recorded (reported) on (date) in the above entitled proceeding.

Dated and certified this ___ day of __________.

__________ Reporter (or other person)

(h) Joint Use of Transcripts. Multiple parties may jointly use a transcript on judicial review. Any party desiring a separate copy may obtain one by paying the transcriber the fee prescribed by statute, rule, ordinance or other provision of the agency, or a fee of $1.00 per page if there is no statute, rule, ordinance or provision of the agency prescribing the fee for providing a separate copy of the transcript.

(i) Form of Transcript. All transcripts of testimony and proceedings prepared for judicial review by the district court under Rule 84(g)(1) shall be in such form and arrangement as required for appeals to the Supreme Court under statutes and rules of the Supreme Court. All transcripts of testimony and proceedings copied for judicial review by the district court under Rule 84(g)(2) shall contain new cover sheets in such form and arrangements as required for appeals to the Supreme Court under statutes and rules of the Supreme Court.

(j) Settlement of Transcript and Record. Upon receipt of the transcript prepared under Rule 84(g)(1) or copied under Rule 84(g)(2), and upon completion of the record the agency shall mail or deliver a notice of lodging of transcript and record to all attorneys of record or parties appearing in person and to the district court. The notice shall inform the parties before the agency that they pick up a copy of the transcript and record at the agency and that the parties have fourteen (14) days from the date of the mailing of the notice in which to file with the agency any objections, and the notice shall further advise the petitioner to pay the balance of the fees for the preparation of the transcript, if any, and the record, if any, before the copy of the transcript and record will be delivered to the petitioner. Where there are more than two parties to the judicial review, they shall determine by agreement the manner and time of use of the transcript and record by each party, or failing such agreement, such determination shall be made by the agency upon application by any party. Any party may object to the transcript and record with fourteen (14) days from the date of mailing of the notice of the parties that the transcript and record has been lodged with the agency. Upon failure of the parties to file an objection within that time period, the transcript and record shall be deemed settled. Any objection made to a transcript and record shall be determined by the agency within fourteen (14) days of receipt thereof. The agency's decision on the objection and all evidence, exhibits, and written presentations on the objection shall be included in the record on petition for review.

(k) Lodging of Transcript and Record. Unless otherwise provided by statute or order of the district court, the agency shall transmit the settled transcript and record to the district court within forty-two (42) days of the service of the petition for judicial review. The agency shall notify all parties or their attorneys of the agency's filing. No recordings of the hearings before the agency need be forwarded unless ordered by the district court.

(l) Augmentation of Record--Additional Evidence Presented to the District Court--Remand to Agency to Take Additional Evidence. Any party desiring to augment the transcript or record with additional materials presented to the agency may move the district court within twenty-one (21) days of the filing of the settled transcript and record in the same manner and pursuant to the same procedure for augmentation of the record in appeals to the Supreme Court. Where statute provides for the district court itself to take additional evidence, the party desiring to present additional evidence must move the court to do so within twenty-one (21) days of the filing of the transcript and record with the district court. Where statute provides for the district court to remand the matter for the agency to take further evidence before the district court renders its decisions on judicial review, the district court may remand the matter to the agency.

(m) Stay During Consideration of Petition for Judicial Review--Power of Agency. Stay of proceedings. Unless otherwise provided by statute, the filing of a petition for judicial review with the district court does not automatically stay the proceedings and enforcement of the action of an agency that is subject to the petition. Unless prohibited by statute, the agency may grant, or the reviewing court may order, a stay upon appropriate terms.

(n) Effect of Failure to Comply With Time Limits. The failure to physically file a petition for judicial review or cross-petition for judicial review with the district court within the time limits prescribed by statute and these rules shall be jurisdictional and shall cause automatic dismissal of the petition for judicial review upon motion of any party, or upon initiative of the district court. Failure of a party to timely take any other step in the process for judicial review shall not be deemed jurisdictional, but may be grounds only for such other action or sanction as the district court deems appropriate, which may include dismissal of the petition for review.

(o) Motions. All motions shall be filed with the district court, except those expressly required to be filed before the agency, and shall be served upon the parties in the same manner as motions before the district court. All motions must be accompanied with a supporting memorandum or brief. The opposing party shall have fourteen (14) days from the service to file a response or reply brief. The motion shall be determined without oral argument unless ordered by the court.

(p) Briefs and Memoranda. Briefs and memoranda shall be in the form and arrangement and filed and served within the time provided by rules for appeals to the Supreme Court unless otherwise ordered by the district court; provided that such briefs may be typewritten and copies may be carbon copies or photo copies. Only one (1) original signed brief need be filed with the court and copies shall be served on all parties.

(q) Oral Argument. Oral argument may be heard by the district court after notice to the parties in the same manner as notice of hearing of a motion before a trial court under these rules.

(r) Other Procedural Rules. Any procedure for judicial review not specified or covered by these rules shall be in accordance with the appropriate rule of the Idaho Appellate Rules to the extent the same is not contrary to this Rule 84. These rules shall be construed to provide a just, speedy and inexpensive determination of all petitions for review. If an appeal is de novo or the court orders an evidentiary hearing, the Idaho Rules of Civil Procedure, as applicable, shall apply to the de novo or evidentiary hearing.

(s) Listening To, Watching or Copying Recording Tapes. Any party to a proceeding before an agency that is subject to judicial review by the district court may listen to, watch or copy any recording of the proceedings before the agency under such rules and for such fees as prescribed by statute, rule, ordinance or other provision setting forth such a fee. If no fees are prescribed, the district court may set a reasonable fee if the parties and the agency are unable to agree on a fee.

(t) Finality of Judgments or Decisions and Remittiturs.

(1) Judgment or Decision on Petition for Judicial Review. The judgment or decision on petition for judicial review shall be entered in the manner prescribed by law. The clerk shall file stamp the district court's ruling and judgment and mail copies to the parties and to the agency.

(2) Finality of Judgment or Decision where district court does not take additional evidence.

(a) If a notice of appeal is not filed, then the judgment or decision of the district court shall become final forty-two (42) days after the date evidenced by the filing stamp of the clerk of the court on the judgment or decision.

(b) If, after the judgment or decision, a party timely files a petition for rehearing then the judgment or decision shall become final forty-two (42) days after the date evidenced by the filing stamp of the clerk of the court on the order denying the rehearing or on any modified judgment or decision issued by the district court with or without a rehearing, if a notice of appeal is not filed.

(c) If a timely notice of appeal is filed, then the judgment or decision of the district becomes final upon the issuance of a remittitur by the Clerk of the Supreme Court or Court of Appeals.

(3) Finality of Judgment or Decision where the district court does take additional evidence.

(a) If a notice of appeal is not filed, then the judgment or decision shall become final within forty-two (42) days after the date evidenced by the filing stamp of the clerk of the court on the judgment or decision.

(b) If, after the judgment or decision, a party timely files a motion which, if granted, could affect the findings of fact or conclusions of law or the judgment or decision (except a motion under Rule 60 of the Idaho Rules of Civil Procedure or a motion regarding costs or attorney fees), then the judgment becomes final forty-two (42) days after the date evidence by the filing stamp of the clerk of the court on the order deciding that motion, if a notice of appeal is not filed.

(c) If a timely notice of appeal is filed from the judgment or decision of the district court, or from an order deciding a motion that could affect such judgment or decision, then the judgment or decision becomes final upon the issuance of a remittitur by the Clerk of the Supreme Court or Court of Appeals on an opinion that does not remand the case for further proceedings in the district court.

(4) Remittiturs. When the judgment or decision of the district court has become final in accordance with this rule, the clerk of the court shall issue a remittitur, mail copies to all parties to the petition for judicial review, and mail a certified copy to the agency. The remittitur shall advise the agency that the judgment or decision has become final and that the agency shall forthwith comply with the directive of the judgment or decision.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.