News from the States
by Michael Asimow^*

In California, a tenured K-12 teacher threatened with discharge is entitled to a hearing before a 3-person panel. The teacher chooses one panelist and the school board chooses a second. The third member is one of California's central panel ALJs. The school board must pay for the ALJ's services by the hour. If the teacher loses the case, he or she must pay half of the cost of the ALJ (about $7700 in this case). The California Supreme Court declared in a 4-3 decision that making the loser pay for the judge violates due process. California Teachers Ass'n v. State of California, 20 Cal.4th 327 (1999).

The Court reasoned that the statute is not well adapted to discouraging frivolous appeals, since it applies equally to meritorious and to frivolous case. As a result, the statute chills the teacher's decision to request a hearing even when the teacher has no way to predict the outcome. The decision suggests that any statute that imposes the cost of the judge's services on a losing litigant (administrative or otherwise) violates due process, regardless of whether the litigant is financially able to pay. Judges, it seems, must be supplied by society as a free good.

This decision seems dubious. Many statutes shift the costs of litigation, including filing fees and attorneys' fees, onto the losing party. All such statutes affect the decision about whether to settle or litigate. Why should the cost of the judge be different from any other cost? Since the decision is based on the federal rather than the state constitution, it might be a good vehicle for U. S. Supreme Court consideration of this significant issue.

Administrative Procedures Law Reform Effort in Mississippi¹

Mississippi's current APA is extremely inadequate; it covers rulemaking but not adjudication or judicial review. A broad-based APA Reform Task Force studied the problem for several years and recommended legislation modeled on the 1981 Model State APA. The bill covered adjudication, rulemaking, judicial review, and open records. Unfortunately, the bill died in the legislature in January 1999. Despite a broad base of support, the bill was killed by agency opposition and fear of change. Agencies were concerned by the cost of the reforms, even though an impartial study showed no long run increase in costs. They complained of a lack of input, even though the Task Force held hearings throughout the state and invited every state agency to participate. The length of the bill was also an issue, even though 400 of the 500 pages involved repeals of existing statutes.

Although the Task Force was unsuccessful, in Mississippi it seems that new legislation must be introduced at least twice before meeting with success. During the past year the Task Force laid the groundwork for success in the 2000 legislative session. If Mississippi insists on doing business the way it always has, the state and all of its citizens will lose an economic development advantage. Given the global economy, businesses and people within and outside the state need to have confidence regarding the openness of the state regulatory structure. Until these administrative reforms are adopted, Mississippi's regulatory structure will remain closed, duplicative, and arbitrary.

Termination of an ALJ for Exercising Judicial Independence Stated a Cause of Action under 1983 Even When Employment Was at Will²

In the case of Harrison v. Coffman, 35 F.Supp.2d 722 (E.D.Ark. Jan. 25, 1999), Judge Howard Sachs denied a motion to dismiss a complaint filed by a former Arkansas administrative law judge who had been adjudicating workers compensation claims. She brought suit under 42 U.S.C. ' 1983 alleging she had been fired from her at-will employment because she exercised her free speech right to independently and impartially decide cases before her in a competent manner within a range of reason and without imposed or required prejudgment, partiality or ideological bias. Her claim was that she was discharged because she exercised judicial independence in deciding cases impartially.

Multiple defenses were raised, including qualified immunity, sovereign immunity, but in a very interesting opinion Judge Sachs rejected all such defenses at the motion to dismiss stage. First, the court held that the ALJ was exercising judicial authority although she had been employed in the Executive Branch of State government. The court found that ALJs are treated the same in federal and Arkansas law regarding absolute immunity from damages for quasi judicial conduct, hence the proper categorization of the plaintiff was as a judicial officer.

Next the court rejected the argument of defendants that the matters at issue were not matters of public concern as supposedly required for protection of employee speech. Connick v. Myers, 461 U.S. 138, 143 (1983). The court found instead that the rulings by an ALJ are not of parochial concern, i.e., not matters of parochial, internal administrative concerns, but rather matters that related to matters of public concern. The court found the instant case plainly involves quasi judicial decisional independence a right arguably protected as a First Amendment constitutional matter.

The sovereign immunity defense was rejected despite Eleventh Amendment rights of the State of Arkansas since reinstatement was requested and such a remedy sounded in injunctive relief, relief not barred by the Eleventh Amendment. The qualified immunity defense was more troubling, particularly since it was not clear whether the claims asserted implicated a clearly established constitutional right of which a reasonable person would have known, citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, the court found that it was defendant=s obligation to demonstrate that the First Amendment rights claimed had not been clearly established, and that such a burden had not yet been carried.

This is a significant case, which, while succinct, appears quite well researched and written. Even if ultimately the plaintiff fails in the particular case, perhaps on the last defense that the right was not well recognized, this case would remain significant. In particular, this decision, and perhaps succeeding appellate decisions, may clearly establish decisional independence as a constitutional right. The case bears watching particularly for ALJs who believe firmly that there should be a constitutional right of judicial independence. Most claimants would likely be shocked if they knew that superiors threatened to terminate ALJs who decided cases "the wrong way." The integrity of the administrative law system is itself at stake in such cases.

A traditional rationale for judicial review of agency decisionmaking is that it upholds the rule of law by reducing the potential for arbitrary action. Even under deferential review, forcing an agency to explain its decision forces the agency to enunciate the reasons for its action. While such a notion is expressed in due process, it often has broader application in administrative law; a state Administrative Procedure Act, for example, might subject agency decisionmaking to judicial review in the absence of a due process interest. The Idaho Supreme Court's most recent struggle with these concepts has once again produced a decision that rejects the rule of law in favor of unreviewable agency discretion.

In Maresh v. State Department of Health & Welfare, 970 P.2d 14 (Idaho 1999), the court (3-2) upheld a decision by the Department to deny mental health services. The client had been denied admission into a day treatment group in a letter that stated only that the agency did not provide appropriate services for her needs. When Ms. Maresh sought to contest the agency's decision, she was informed that she had no right to do so: the agency's decision was an act of unreviewable discretion. The Supreme Court agreed -- despite the provision in the Idaho Regional Mental Health Act that every citizen has a Aright@ to mental health services, I.C. ' 39-3125, and a provision in the state's new APA that an agency decision Aof particular applicability that determines the legal rights@ of an individual are to be made through contested cases, I.C. ' 67-5201(6), (11). The court concluded that the agency's decision did not abridge a right because Ms. Maresh had no right to any particular treatment. Similarly, the court held that Ms. Maresh had no due process interest at stake, and the agency's admittedly arbitrary decision thus presented no constitutional problems.

Teaching the Art of Judging: the Maryland Mentor System⁴

Winter regularly brings its own challenges to operating a docket, particularly when the courtrooms move around as they do at the Maryland Office of Administrative Hearings (AOAH@). January 1998 brought not only cold weather but seven new Administrative Law Judges to OAH. Their arrival boosted OAH=s judge population by over ten percent B to sixty judges.

AThis was not time for business as usual,@ noted Judge Suzanne Fox, Director of Quality Assurance. Accordingly, during the summer of 1998, strategists at OAH studied the training program in existence, analyzed its benefits and disadvantages, and ultimately, completely revised how OAH brings new judges on board. AWe felt that the most important thing to teach new ALJs was how to hold hearings,@ commented Lorraine Ebert, Deputy Director of Quality Assurance, Aand, with that as the premise, designed training around a mentor-mentee model to convey that lesson.@

Previously, new judge training at the OAH required each judge to spend approximately one month observing, writing decisions, and holding hearings in one of three to four core high volume areas, such as personnel, insurance, food stamps/medical assistance, or inmate grievances. Each new judge could be trained in that subject matter area by virtually any ALJ. In the following month, the new judge would transfer to another high volume area and repeat the process with even more ALJs. New types of hearings requiring written decisions would be incorporated as appropriate.

After approximately six months of experience, the new judges would begin intensive training in hearings requiring bench decisions, such as psychiatric commitments. More complex hearings were typically added to a judge=s schedule after he or she was trained in the basic high volume types of hearings. During this initiation period, a new judge would be expected to pick up, through training by sometimes dozens of judges, all of the various procedures for handling different hearings, traveling to different hearing locations, and completing the entire process of receiving and completing a docket.

Training was also supplemented by OAH=s regular monthly educational programs. This system was utilized when hiring of new judges was staggered, with individuals or small groups of two to four were hired over a several week period, as personnel needs demanded.

Problems arose when one or more of the new judges was assigned to an area with a high volume of writing while another might be assigned to an area in which there was a temporary lull in hearings, due to postponements or settlements. New judges also lacked a point person to contact with questions about topics as critical as ethical issues or as mundane as how to complete a timesheet, or how to get to a particular hearing location.

AWe believed that the hardest challenge to a new judge was not learning substantive areas of the law,@ Judge Fox noted, Aas all candidates come in with strong public and private sector legal experience -- but was learning how to shift from being an advocate to being a judge. The mentor-mentee system was an ideal model for teaching this lesson.@

Under this system, seven senior judges were selected as Amentors.@ Each new judge is assigned to work directly with his or her mentor, traveling with the mentor to his or her hearings, writing decisions, and conducting hearings under the observation of his or her mentor. If the mentor is not available, new judges can be assigned to work, on a day by day basis, with one of fifteen back-up mentors.

The new program seems to be working. After three months in operation, anecdotal stories indicate that the mentor system has gotten the new ALJs off to a faster start, with a higher comfort level in hearing techniques and in each particular subject matter area. And, as one new ALJ, Denise Shaffer noted, AWe get to see the real work of an ALJ, from the beginning, shifting every day to a different kind of hearing.@

California Puts the Regs on the Net⁵

California's Office of Administrative Law (OAL) has the website for the California Code of Regulations (CCR) up and running. The address is http://ccr.oal.ca.gov/. Placing regulations on the web makes searching for CCR provisions much easier and cheaper for everyone, including members of the general public. The site includes explanations of the legal effect of regulations that seem intelligible to the average educated person, which is also good for enhancing public understanding of the field of law and government.

Gedid, John L. Administrative Law Progress in 1997: Selected Pennsylvania Supreme Court Decisions Involving Constitutional and Administrative

Decisions. 7 Widener J. Pub. L. 403-468 (1998).

Annual Survey of Pennsylvania Administrative Law: Survey of Selected Court Decisions. (Student survey.) 7 Widener J. Pub. L. 469-845 (1998).

Muga, Richard D. The Role of Florida's Environmental Regulation Commission. 11 St. Thomas L. Rev. 77-107 (1998).