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May 01, 2019 Ethics

Ethics and Judicial Independence in an Executive Branch Judiciary

By Marla N. Greenstein

We are accustomed to viewing our judges as independent arbiters, ideally shielded from outside influence by a Code of Judicial Conduct. Provisions addressing disclosure and disqualification, limits on outside activities (including political activity), restrictions on speaking about pending court matters, and prohibitions on ex parte communications all assume and emphasize a judge who must be distant from those who appear in court.

Hearing officers and administrative law judges (ALJs) face additional challenges that judges in a separate judicial branch of government do not. Hearing officers who are not part of a “central panel” of ALJs have the largest challenge. Often employees of the agency whose cases they decide, hearing officers may have an office in close proximity to the agency lawyers and policymakers. Even with guidelines prohibiting ex parte communications, agency lawyers may have routine communications with hearing officers who are related to pending matters. Cognizant of the pressures that agency hearing officers face that may impede courageous independent judicial decision making, central panels of ALJs have developed. These central panels seek to create distance between the ALJs and the agencies by having these judges serve many agencies, not merely one.

Even within a central panel system, some jurisdictions allow agencies broad procedural access to the ALJ. Some agencies may request a pre-release copy of an opinion. Others may threaten to withhold funding support if decisions do not go their way. For all these reasons, ALJs have long supported a Code of Conduct that will both guide and shield them. In August 2018 at the ABA Annual Meeting in Chicago, the ABA House of Delegates approved Resolution 113 adopting a Model Code of Judicial Conduct for state ALJs. Largely tracking the ABA Model Code of Judicial Conduct (2007), the challenge will clearly be in its application.

The report to the House of Delegates states the purpose of the Code of Conduct for state ALJs: to “shore up” the existing Administrative Procedure Acts of the various states “to assure fair adjudicative hearings . . . by eliminating pro-agency bias and appropriately protecting administrative law judge and hearing officer independence from agency encroachment and interference while still preserving agency control over policy and consistency in the application of the law . . .” (Report Summary).

Perhaps most significantly, parties with disputes who appear in an administrative proceeding expect the same impartiality and fairness as in a court. They view the adjudicator as a judge and the hearing room as a courtroom. While various articles in this issue of The Judges’ Journal raise the many challenges to the independence of ALJs, we can hope that the states, in part by adopting the Model Code of Judicial Conduct, recognize the essential component of adjudication in a representative democracy: independent decision-making free from outside influence where an interested citizen has the same voice as the opposing government agency. While decisional independence is assumed, it is also an ideal that can be easily compromised. A Code of Conduct is both a constant reminder of that ideal and a guide to each adjudicator: that they are in reality judges whose impartiality is essential in preserving every citizen’s basic rights to redress grievances against the government. 

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].