CBA Record January-February 2024

Impaired Impartiality: How to Ensure the Independence of Administrative Law Judges By Alan Rhine

W ould you be confident your client could obtain justice if your adversary paid the judge’s salary? Some attorneys face this situation when representing a client in an adminis trative hearing. This article examines some of the different types of administrative hearings and their evidentiary standards; explains why a combination of inves tigative and adjudicative functions can be problematic; and suggests a potential solution to ensure the independence of administrative law judges. It also offers some practical guidance for attorneys as they prepare for an administrative hearing. If your client’s dog bites a person in Chicago, an administrative hearing can impose a fine and order restitution to a victim. See Chicago Municipal Code, Sections 7-12-030 and 7-12-050. If your client is a physician, their license can be suspended in an administrative hearing. See 225 ILCS 60/22. If your client seeks disability payments, that is determined in an administrative hearing. See 42 U.S.C. § 405(b). These hearings are conducted by administrative law judges (ALJs). (The terms hearing examiner, hearing officer, referee, or arbitrator may be used instead of administrative law judge. See 5 ILCS 100/1-15.) In Illinois, the agency head or an attor Administrative Encounters: Evidentiary Basics

Staffing Models for Administrative Hearings

ney licensed to practice law in Illinois may act as an ALJ or panel for an agency. See 5 ILCS 100/10-20. Administrative hearings have no jury, and the rules may be different than in other civil proceed ings. For example, under the Illinois Administrative Procedure Act, evidence not admissible under the civil rules of evi dence and privilege may be admitted in an administrative hearing “if it is of a type commonly relied upon by reasonably pru dent men in the conduct of their affairs.” 5 ILCS 100/10-40(a). The evidence presented at an admin istrative hearing is crucial, because while administrative review in court is possible, this review is limited in several ways. For example, the Illinois Code of Civil Proce dure provides that a court may not hear new evidence. On administrative review, the factual findings of an administrative agency are deemed “to be prima facie true and correct.” See 735 ILCS 5/3-110. Furthermore, each agency may have its own rules regarding evidence. For example, in an administrative hearing before the Illinois Department of Health care and Family Services (IDHFS), unless proven otherwise, computer-generated documents prepared by the IDHFS are presumed to accurately reflect the IDHFS’s records as to the amount and type of payment made to vendors as well as the basis for such payment. See 89 Ill. Admin. Code 104.255.

Several models exist for staffing the posi tion of administrative law judge. The Illinois Independent Tax Tribunal (ITT) hears certain tax cases; that adminis trative tribunal is independent of the Department of Revenue. The ITT rules on certain cases alleging underpayment of Illinois taxes. See 35 ILCS 1010/1-1 et seq., including 35 ILCS 1010/1-15. The governor appoints the ALJs of the ITT, who may not hold outside employment or another office or position of profit with the State of Illinois. See 35 ILCS 1010/1 25(a); 35 ILCS 1010/1-30(c). The Illinois Human Rights Act uses a different model that separates prosecution from enforcement. The Illinois Depart ment of Human Rights has the authority to both file and investigate charges. Hear ings are held before an ALJ that the Illinois Human Rights Commission employs. See 775 ILCS 5/7-101(D) and (E). Some Illinois agencies conduct admin istrative hearings in which two private adversaries present their evidence. This is done in cases relating to unemployment insurance before the Illinois Department of Labor; the parties are the employee and the employer. In other administrative hearings, the same agency investigates, prosecutes, and decides the case. Such is the situation in hearings before the IDHFS on issues of

16 JanuaryFebruary 2024