Ballotpedia study shows that 46 states allow administrative agencies to choose whether to follow formal adjudication procedures

Banner with the words "The Administrative State Project"

A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 46 state constitutions or APAs allow administrative agencies to choose whether to follow formal adjudication procedures in administrative hearings, as of August 2020. Those states allow administrative agencies to settle these cases informally with fewer procedural safeguards than the formal adjudication process provides.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Formal adjudication procedures approximate those of a traditional state court and include trial-like, adversarial hearings with witnesses, a written record, and a final decision made by a neutral presiding officer. Informal adjudication procedures vary but do not necessarily require a hearing with oral testimony, cross-examination of witnesses, or a verbatim stenographic record.

Most states allowed the agencies and accused parties to decide whether to go through a formal adjudication or to reach an informal settlement. Ballotpedia concluded, therefore, that those states do not require formal adjudication.

When states listed exceptions to a general rule that agencies should follow formal adjudication procedures, Ballotpedia concluded, therefore, that they sometimes require formal adjudication.

Understanding adjudication procedures provides insight into the due process and procedural rights of citizens at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Procedural rights: States that require agencies to follow formal adjudication procedures in administrative hearings

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading: