The Annual Report of the General Assembly’s Administrative Rules Oversight Committee (pdf) has an interesting discussion of replacing the Administrative Law Judge system for adjudicating matters overseen by the state’s administrative agencies with a centralized “office of appeal.” The committee ultimately recommended against such a proposal because the people who testified before the committee were supportive of the current system.
The idea is, however, that a centralized office of appeal would allow for judges who are more independent of the agencies whose decisions they are reviewing. It’s hard to escape the feeling that an agency’s Administrative Law Judge might be biased toward the agency. A judge coming out of a completely different administrative department who reviews decisions from a variety of agencies would presumably have an easier time being independent.
However, the various people providing testimony to the committee seemed well satisfied by the ALJ system, saying that it allowed for judges with expertise in the particular administrative areas and a consistency of decisions. The witnesses were a lawyer who practiced frequently before the Office of Environmental Adjudication; a deputy director of the Department of Natural Resources; and the Chief Environmental Law Judge for the Office of Environmental Adjudication.
For my part, on the hand full of occasions when I have practiced in front of an administrative law judge, I have had mostly negative experiences when compared to my experiences with a wide variety of trial court judges. Admittedly, this could be mostly a matter of my lack of familiarity with this particular legal subculture — the codes of procedure only tell half the story in any of these settings. There are generally any number of unwritten rules that frequent players just know. (For example, traveling west central Indiana doing collections, every court does things just a little bit differently, and you just have to get to know the system.) In any case, the ALJs I have run across seemed to be inconsistently focused on technical rules. By which I mean, they almost make a fetish of some of the rules while casually ignoring others. And the game is figuring out which is which.
But, like I said, my experience here is limited — maybe 6 to 8 matters across 3 administrative agencies. Probably not a big enough sample to draw a conclusion.
My sample is smaller than yours, but my impression is consistent with yours. I went before boards on a couple of licensure issues, and the ALJ and agency counsel seemed positively offended that someone had the audacity to bring outside counsel into their kangaroo court. That may seem a bit harsh, but those were two of my worst days in the practice of law.
My experience with administrative law judges is that they heavily favor the administrative agency that pays them. It is awful having to explain to clients they will likely lose despite the merits of their situation. I have to explain to them that we only hope the administrative law judge leaves a record that allows appeal to a trial court on the limited grounds available.
Even if the result is appealable, it only adds to the expense for the person contesting the assessment of an administrative agency. By this reason alone, many questionable administrative agency decisions are never contested because of the expense of having two hearings to get a fair result.
In defense of the lawyer and ISBA Environmental section that testified for leaving the system intact, it may work well for attorneys dealing with IDEM. Environmental law has become increasingly complex and by its nature is technical. So perhaps it works well for that area.
My opinion, though, is that in a lot of areas, the system is heavily geared towards preserving the status quo of the agency, which means the initial assessment is rarely found to be in error and that in reality, the proceeding is nothing more than a “pro forma” event with an insidious predisposition towards the result that most favors the agency’s current positions.
I favor completely independent administrative law judges. It was a big mistake creating them without the same safeguards that Indiana requires with its trial judges.
I agree with the sentiments expressed by Mr. Retherford, however, I doubt that the payment of salary for the ALJ’s is the real issue – I think anytime you have a special court, one that hears issues regarding a particular agency or office, the real problem becomes the personal relationships.
Going in front of OEA, for instance, the fact that IDEM’s counsel has been working cases before that ALJ for months if not years, and may continue to do so for the foreseeable future, means they have a working relationship they cannot afford to upset. Me – I’m just some dude in from the sticks, and even if I devoted my whole practice to IDEM appeals, I’d seldom see the ALJs.
Again, I don’t think it is bias – I think it is just human nature. That’s why I like to go in front of a trial judge – the general jurisdiction gives the court broader exposure, and, at least in my sample, less attachments/entanglements.
I would favor the move to independent ALJs if they modeled the system on the trial court system – giving the ALJs general as opposed to specific jurisdiction.
One of the prime reasons for administrative adjudicators is the specialized subject matter knowledge that they bring and can develop – a reason that would be wholly negated by a centralized system. If we are not going to honor this reason, there should be no administrative system.
And incidentally, there are plenty of attorneys across Indiana and the country who have cultivated strong working relationships with the adjudicators working in administrative law in Indiana. This is not dissimilar to attorneys who have heavy bankruptcy practices knowing the pecularities of the various jurists before whom they practice.