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May 01, 2019 Introduction

A Path to Impartiality

By Judge John C. Allen IV

My first experience, as an attorney, with an administrative adjudication process occurred a few years into my private practice when a nurse hired me to represent her in front of the state’s nursing board. Her issue had been investigated by the regulatory agency and sent to the state’s review board. Even though it was clear that she had committed no meaningful violation, the investigator had found a technical violation and had forwarded his report. As a former criminal attorney, I had concerns that the hearing officer and the review board would react to the case bureaucratically and not pay attention to the entire situation. Fortunately, the process allowed the adjudicators and the board the opportunity to hear our case. It was clear that the panel had thoroughly prepared for our case; however, they immediately understood our presentation and the theory that served as our foundation. The resulting favorable decision occurred in large part because their experience and latitude to explore our presentation of facts served to provide a clearer picture of the incident than what the investigator reported.

The beauty of the administrative law process is that it allows a fair and impartial adjudication of the issues that executive branch agencies must face without becoming mired down in the formalities that a court must abide. To be clear, an administrative law court must follow rules of procedure that establish baseline rules that protect the parties and ensure a proper process is followed so that a fair decision can be reached. Most prominently, the federal Administrative Procedure Act was enacted to provide uniformity in the procedures employed by federal agencies that utilize an administrative process to adjudicate claims. Similarly, most states and several municipalities have enacted similar statutes within their respective jurisdictions.

The administrative law process is the one adjudicatory process with which the typical U.S. citizen will come in contact. Whether it’s an unemployment dispute in Iowa, a child support matter in Illinois, or a simple parking ticket in New York, a person will likely get his or her real-world understanding of the legal system from that experience with an administrative process. Unfortunately, the administrative law system does not have the constitutional protection of being a separate branch of government; instead, it is an integral part of the executive branch, whether federal, state, or municipal. The notion that the “fix is in” is a sad reality that every administrative law judge (ALJ) must resist.

Independence, the true path toward impartiality, is a bedrock principle within any administrative hearings department. The government and, in particular, the executive branch of that government must be able to empirically show that administrative hearings are independent and free from outside influence that would inherently corrupt a decision or a system of adjudication. There are several paths to accomplish that goal, none of which are independent of the other. The American Bar Association has adopted a Model Code of Professional Conduct for both federal and state ALJs. States and municipalities have explored contracting the services of the ALJ to avoid employment of a judge by the agency that is also a party to the proceeding. Additionally, several states and municipalities have established a central panel structure where one, separate department hears the cases that other agencies have set for administrative hearings. The distinct department is headed by a chief ALJ, although they may operate under a different title such as “director.” The central panel allows the ALJs or hearing officers to adjudicate the matters in front of them without the perceived or actual influence of the agency that has a vested interest in the outcome of the case.

At the federal level, the issue of independence has become more concerning. With the decision rendered by the U.S. Supreme Court in Lucia v. Securities and Exchange Commission, issued on June 21, 2018, and the subsequent Executive Order, issued on July 10, 2018, the hiring and dismissal of federal ALJs are removed from the competitive hiring rules and examinations. Falling under the appointments provision, without the constitutional protections of the judicial branch of government, leaves federal ALJs vulnerable to agency goals and political winds. While a federal central panel would appear to be an obvious method of protecting the independence of a federal ALJ, there are important and entrenched stakeholders and issues that must be addressed.

This issue of The Judges’ Journal explores these various facets of the administrative law judge. The authors here provide a unique and challenging insight into the evolving environment of the ALJ. The authors not only speak to the daily trials and efforts of their profession but also speak eloquently on the philosophical underpinnings of adjudicating matters of the utmost importance to the parties, which include the government that hires them. The passion and ideals discussed are intended to verify the commitment that is shown by the ALJ community toward an impartial judiciary that is founded upon independence, transparency, and fairness. 

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By Judge John C. Allen IV

Judge John C. Allen IV is an administrative law judge in Cook County, Illinois, for the Department of Administrative Hearings. He is a member of the Executive Committee for the National Conference of the Administrative Law Judiciary and the vice-chair of the Administrative Law Section Council for the Illinois State Bar Association. He can be reached at [email protected].