A Credible Mechanism for Resolving Disputes

Introduction
The system of jurisprudence and the rule of law in the U.S. is premised on a system of checks and balances in a government with three separate but equal branches of government (the legislative, the executive and the judicial branches). The legislative branch makes the laws and the executive branch enforces the laws. The judicial branch interprets the laws by resolving disputes. The legislative branch holds the power of the “purse strings.” The executive branch possesses the enforcement mechanisms. The judicial branch cannot appropriate money and it doesn’t have a police force to enforce its judgments. It is the weakest branch of government, yet it is the last word because the people, so far, accept the legitimacy of the Supreme Court and the courts below it. It is the unseen glue which holds our system together.
Agencies are created to implement specific legislative purposes.
As such, agencies have a combination of functions:
EXECUTIVE – Enforcement
LEGISLATIVE –Rulemaking
JUDICIAL – Adjudications
Where does the “Guidance Document” (Federal) fit? Under the Executive (function) or Legislative (function)?
**Prepared by the U.S. Attorney General to guide agencies in the performance of their functions.

Adjudications: Due process Analysis Factors
ADJUDICATIONS: DUE PROCESS ANALYSIS FACTORS
DEPRIVATION
Immediate
Threatened
Direct
Indirect
PROPERTY
Entitlement
Expectation
Sources
LIBERTY
Stigma
Good Name
Honor – Integrity
Opportunities Foreclosed
PROCESS
Hearing
Timing – Scope
Lawsuit

Agency Program –Right to Adjudication
Regulatory Agencies/e.g. the EPA (Environmental Protection Agency)
Enforcement initiated by agency
Enforcement initiated by private party
Benefits Agencies, e.g. SSA, UI, Workers’ Comp. (between two private parties)
Application for benefits
Termination of benefits
Licensing Boards:Application, e.g.,denial, Suspension or revocation

Powers of Adjudicator at Hearing
Administer oaths and affirmations
Sign and issue subpoenas
Rule upon offers of proof and receive evidence
Dispose of motions relating to discovery
**REGULATE THE COURSE OF THE HEARING
Fix the time for filing briefs and other documents
Convene pre-hearing conferences to simplify issues
Issue orders that control the course of proceedings
Dispose of motions, including motions to dismiss, intervene or similar matters
Reprimand or exclude from hearing any person for indecorous conduct
Award attorney fees for discovery abuses when permitted by statutory law.

The Need for Decisional Independence
The “Application” Section of the 2007 ABA Model Code of Judicial Conduct refers to the Administrative Law Judiciary.
Canon 1 states: A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary….
The late Chief Justice William H. Rehnquist said that an independent judiciary is the “crown jewel of our democracy.”
The administrative law judiciary, unlike constitutional judges, must deal with accommodating legitimate agency objectives without compromising judicial independence.
Structural Independence [statutory frameworks that assure the ALJs judicial/decisional independence]
Functional Independence [the ALJ’s insistence on being judicially/decisionally independent, sometimes despite a statutory framework to the contrary].
Job Security is the bedrock of judicial independence
ALJs, Quasi-Judicial Officers or Employees? Or, both?

Accountability of Adjudicators
Ordinarily, the administrative law judiciary likes to fly under the radar.
There are several appropriate forms of accountability. None include
political accountability.
There is a constant interplay between judicial independence and accountability.
APPROPRIATE FORMS OF JUDICIAL ACCOUNTABILITY
Accountability to “reasoned elaboration” [having to give legal reasons for a decision].
Accountability to precedent a/k/a stare decisis [the SSA has a policy of non-acquiescence (in opinions of other U.S. circuit courts of appeal if they conflict with SSA policy). Senior U.S. District Judge John L. Kane (Colorado) calls this a recipe for anarchy.
Accountability to codes of judicial conduct, rules of professional conduct.
For the administrative law judiciary, accountability to supervisory performance evaluations mandated by state personnel systems. There are two types:
Judgmental (affects pay, status, tenure)
Developmental (for self-improvement only)
Right to Judicial Review.
Public Performance Evaluations (developmental) [by commissions, public surveys].
**“Accountability in the Administrative Law Judiciary: The Right and the Wrong Kind,” 86 Denv.U.L. Rev. 157 (2008) [reprinted in 30 J. NAALJ 19 (2010); Felter, Edwin L. Jr. [explores the reasons why political accountability is not appropriate]

CENTRAL HEARING AGENCIES (CENTRAL PANELS) vs. ADJUDICATORS IN THE AGENCIES
Perceptions can be everything. A perceived lack of independence and impartiality can, in and of itself, amount to a lack of both.
If the adjudicator is within the agency, and impenetrable wall between it and the adjudicator must be constructed to foster public perceptions of fairness, e.g., the federal ALJs, who hear Social Security cases are in the Office of Hearings and Appeals of the Social Security Administration (SSA) and are physically separate from the administration.
The best impenetrable wall is a central panel, an organization of adjudicators that is a separate agency from the agencies that are required to provide a fair hearing at the end of the administrative line.
Now, there are 25 state central panels, 3 city central panels (NYC, Chicago, and D.C.), and one county central panel (Cook County, Illinois).
CENTRAL PANELS – A GOOD GOVERNMENT IDEA
Maryland was the first central panel established for a purely good government idea. It was established in 1989. The first two years were more expensive than all the confederated adjudicators existing before 1989. After the third year, costs were less.
Alaska established a central panel in 2004 – for good government reasons.
A central panel offers an efficiency of scale.
Its only function is to hear and decide contested cases.
Thus, public perceptions of fairness are similar to perceptions of the judicial branch.
The central panel still offers ALJs with specialized expertise, without compromising perceptions of fairness, i.e., coziness with the agency is not a factor.
The State of Illinois now has a central panel.

Forms of ADR (Alternative Dispute Resolution)
Settlement Conference by a Judge --- judge discusses merits of positions to encourage settlement (can be heavy handed)
Non-binding Arbitration (by a private arbitrator or arbitrators) ---a neutral selected by the parties hears the evidence and issues a court-like decision for the purpose of facilitating settlement.
Binding Arbitration –same as nonbinding but the neutral’s decision resolves the matter and it is not subject to appeal.
Early Neutral Evaluation – a neutral evaluates what will happen at trial and issues a report on strengths and weaknesses of each side’s position in order to facilitate settlement.
Mini-Trial --- an abbreviated trial where the parties agree to be bound by the neutral’s decision.

Minimum Due Process Requirements for a Hearing
Timely and adequate notice detailing reasons for proposed termination, revocation or denial.
Effective opportunity to defend by confronting any adverse witnesses
Opportunity to present arguments and evidence, orally
Allowing the person to retain an attorney
Basing a conclusion as to benefit eligibility or permit revocation or denial solely on legal rules and evidence presented at hearing
A statement of the reasons for the determination, indicating the evidence relied on; and,
An impartial decision maker.

Adjudication by Tribunal (BEST CASE WINS)
Monetary Penalties
Specific Performance of an Agreement
Cease and Desist (injunctions)
Revocation, Suspension or Probation (of License or Permit)
Mediation (PARTIES CAN SHAPE THE OUTCOME)
Enforceable Settlement Agreement
REMEDIES

Chevron and its Aftermath
Judicial Branch Courts have historically granted deference to an agency’s interpretation of its own rules and regulations
HOWEVER,
Under Chevron, the Supreme Court has been mandated to accord an agency’s interpretation of its statutes (adopted by Congress) if there is genuine ambiguity in the statute. The rationale is that the agency should know best.
Chevron has been increasingly disfavored under the rationale that it amounts to “the fox watching the chicken coop.”—without adequate oversight by the judicial branch.

Auer Opinion
FACTS: Police sergents sued for an alleged violation of the Fair Labor Standards Act (FLSA) by virtue of a departmental policy/regulation that provided they were management and not subject to being paid overtime. Ultimately, the Supreme Court determined that the regulation was reasonable, noting that to be non-exempt employees they must be subject salary reductions, a limit on hours worked beyond which the non-exempt employees are entitled to overtime pay—time and one-half pay, whereas exempt (management) employees are not entitled to overtime pay, salary reductions, or the mandates of the FLSA. The opinion illustrates the reluctance of the courts to interfere with an agency’s reasonable regulations.